Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
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    Default Assignment of debt vs debt sold - Is there any difference between the 2?

    Is there any difference between an assignment of debt from the original creditor to a debt collectionicon Agecy (DCA) and the debt being sold to another company and that new company seeking payment of the original debt (whilst the account is in disputeicon)?


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    If the account is in disputeicon then neither should have taken place is my understanding.

    Have you received a Notice of Assignment then ?

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by citizenB View Post
    If the account is in disputeicon then neither should have taken place is my understanding.
    This is not correct. There is nothing to stop a contract being assigned unless it is specifically prohibited within the terms of the contract

    Is there any difference between an assignment of debt from the original creditor to a debt collectionicon Agecy (DCA) and the debt being sold to another company and that new company seeking payment of the original debt (whilst the account is in dispute)?
    Sometimes creditors use dcas to collect debts on their behalf on other occasions they actually sell the debt to the dca.

    The sale of a debt is done by way of an assignment.


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    There a re 2 types of assignment, equitable and absolute. Equitable means the DCAicon is collecting on behalf of the OC and absolute means the DCA has purchased the account.

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    How would we know which is which?

    Every journey begins with a single step

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    The only person entitled to your Personal Finance details is a Judge not a DCA

    Move all banking activity to another banking group if you have a dispute - your funds can be used to offset debts within the same group.

    Be careful with Banking details (card/account numbers) as these can be used to take unauthorised payments.
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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Ask the DCAicon. With an equitable assignment the OC would have to be a co-claimant in court.

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    I am not sure how I would identify a 'Notice of assignment' but I received a letter from the OC informing me they were going to write the debt off but would then pursue a listed number of actions including selling the debt to a third party. I wrote back and said they could not whilst the account was in dispute, their complaints department acknowledged my letter said they would reply in December 08 and never did, I was then served with a default notice and finally (so far) received a letter from another company saying they are now the owner of the account having 'acquired the debt' and are seeking full payment! From the replies on this thread it sounds like an absolute assignment. In case it is of relevance the OC had failed to provide a CCA.

    I note there are differing views on whether a contract can be assigned whilst the account is in disputeicon but if the contract is the same thing as the credit agreement and it doesn't appear to exist how can they assign it?


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    They're breaching OFT guidlines and the CPUTR by trying to collect on an account in dispute and forwarding it to another company. Report them to TS and the OFT.

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Does the last post mean that if the original OC still held the debt they should not be trying to collect either directly or via a DCAicon? If that is the case then events have moved on as it seems like the Original Creditor (OC) is not holding the debt or trying to collect it. They seem to have sold it outright (I think from answers in this thread this is referred to as an absolute assignment).

    It begs the question can they sell/absolutely assign the debt when the account is in disputeicon? If I am interpreting the replies correctly there are 2 differing viewpoints so far. Any further views would be appreciated so I can weigh it all up and decide what to do.


  10. #10
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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    my view is there is nothing to prevent the sale or assignement of your debt, institutions frequently sell whole tranches of old debt for a small % of the value.
    but this does not affect the validity of your dispute, it just means you have someone new to explain the dispute to - they will then eventually give up and go away since when they understand your dispute has substance they will not wish to waste good money on chasing it further.


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    The offending parties will be breaching OFT guidlines and the CPUTR so should all be reported to TS and the OFT.

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by TEAGRAM View Post
    my view is there is nothing to prevent the sale or assignement of your debt, institutions frequently sell whole tranches of old debt for a small % of the value. Correct
    but this does not affect the validity of your dispute, it just means you have someone new to explain the dispute to BUT WRONG TEAGRAM...- they will then eventually give up and go away since when they understand your dispute has substance they will not wish to waste good money on chasing it further.
    If a debt is in dispute it mustn't be sold, read the OFT Guidelines on debt collectionicon, read the CCA ..DCA's who buy debt, whole tranches of debt, have laws, rules and regs to abide by and must inform debtors if the debt has been assigned in the correct manner with hallo and goodbye letters sent accordingly.

    You cannot just pass a disputed debt onto someone else, not a consumer debt anyway. We have spent the last 3 years educating the industry of precisely that, be they statute barredicon debt which they purchase or 3 month old debt - the rules and regs have to be applied rigorously otherwise these degenerates feel they have a free hand to continue what they have done for the last 40 years without recourse. Not anymore they don't.

    Sad thing is they do not give up, even when they are told they are wrong - most of these DCA staff haven't a clue about the OFT they think OFT is slang for Off For Tea...so complain as babybear so correctly says and stop them in their tracks.

    S

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Thanks for your support on this. I cannot believe what these companies are doing. It is a shock because when you don't expect to have debt problems you don't look below the surface of what the Finance industry is doing to people. It has been a shock. I will see if there are any templateicon letters I can find for the Oft complaints. I guess the complaint is against the Original Creditor (OC) and a letter advising the company who 'aquired the debt' that the debt was in dispute and has to be returned to the OC. Does that make sense?


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by Hungryforinfo View Post
    Thanks for your support on this. I cannot believe what these companies are doing. It is a shock because when you don't expect to have debt problems you don't look below the surface of what the Finance industry is doing to people. It has been a shock. I will see if there are any templateicon letters I can find for the Oft complaints. I guess the complaint is against the Original Creditor (OC) and a letter advising the company who 'aquired the debt' that the debt was in dispute and has to be returned to the OC. Does that make sense?
    You can find a complaint form on the OFT website....Write to the DCAicon telling them there is a dispute with the OC and to refrain from activities, they'll know the score and will understand if it's spelt out to them. You can always add the words "Having received information from the "Consumer Action Group website" they'll know then you have one or two people behind you on this..

    Trust no-one in the finance industry, a few days reading over this forum will show you exactly what they get up to in the industry - respectibility is a thing of the past. Businesses earn respect, they don't demand it in terms and conditions...as they are finding to their cost.

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  15. #15
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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by andrew1 View Post
    If a debt is in dispute it mustn't be sold, read the OFT Guidelines on debt collectionicon, read the CCA ..DCA's who buy debt, whole tranches of debt, have laws, rules and regs to abide by and must inform debtors if the debt has been assigned in the correct manner with hallo and goodbye letters sent accordingly.

    You cannot just pass a disputed debt onto someone else, not a consumer debt anyway. We have spent the last 3 years educating the industry of precisely that, be they statute barredicon debt which they purchase or 3 month old debt - the rules and regs have to be applied rigorously otherwise these degenerates feel they have a free hand to continue what they have done for the last 40 years without recourse. Not anymore they don't.

    Sad thing is they do not give up, even when they are told they are wrong - most of these DCA staff haven't a clue about the OFT they think OFT is slang for Off For Tea...so complain as babybear so correctly says and stop them in their tracks.

    S
    Whilst that may be true in terms of OFT guidelines - as a matter of law the company can sell the debt (subject to any restrictions in the original contract) and of course the mechanism through which legal ownership is transferred is assignment and the assignee (the new owner of the debt) can bring proceedings. The fact that the assignment was in breach of OFT guidance does NOT make the assignment unlawful.

    As pointed out previously by another poster any defences to the original agrement are still there AND the fact of the assignment also gives rise to a range of possible other defences ranging from whether proper notice of assignment was given to whether the actual assignment itself is valid

    In terms of the breach of OFT guidance - you need to complain to the OFT


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Thanks for further very helpful responses on this thread. The thread started out as my trying to understand if there was a difference between a debt being assigned and a debt being sold/bought and if the account being in dispute at the time had any bearing in either scenario. I am concluding from the various posts received that whilst the account is in disputeicon the sale/purchase of the debt is against OFT guidelines but may not be unlawful depending on the conditions of the original contract. With this particular creditor they have not even produced an agreement so it is impossible to check the original conditions for any restrictions on assignment. If they didn't have it at the time of assignment, the new account holder is going to have some difficulties collecting.


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    The debt being sold or assigned means the same ( I believe), the difference is in the type of assignment. Equitable means they bought the benefit (debt), but none of the duties ie being able to sue in their own name, send statements, add interesticon & charges and arguably not able to report to credit ref agencies. Absolute/legal means they bought everything, they benefits and duties, BUT for this to be legal it should have been Novated. This means you agreed in writing and signed to say so the new creditor taking over the debt, it is a new contract and as such you are a party to it with the same rights as in the first contract (but you wont agree unless you are a retard of course).

    many DCAicon`s seem to be confused over the difference, including qualified solicitors they have working for them. I have an ongoing tussle with solicitors who have now clearly stated the assignment was Absolute, ohh dear that messes up their ideas to take me to court.

    The argument as to whether they can sell it on comes down to what the agreement states they can do, oh there isnt one! “nemo dat quod non habet”, you cannot give what you do not own. No contract = no proof of ownership.



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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by Hungryforinfo View Post
    I am concluding from the various posts received that whilst the account is in disputeicon the sale/purchase of the debt is against OFT guidelines but may not be unlawful depending on the conditions of the original contract.
    It is not unlawful to sell the debt while in dispute. There are 2 potential 'unlawful' things:-
    1) The dispute must be settled by the old owner. If they refuse to respond they are breaching CPUT Regulations 2008, plus,
    2) The new owner must be made fully aware of the dispute and not enter into any requests for payment etc, as again they are breaching CPUT Regulations.

    Consumer Protection From Unfair Tradingicon does clearly state a new trader (owner) must be given all the information relevant to avoid the consumer having to repeat their case.

    The question over legality rests with the courts. However, the OFT are the body who decide whether an action is worthy of prosecution. On past performance, OFT need a lot of complaints before they do anything so do not be despondent if they do nothing on just your complaints. The old points make prizes line, can be interpretted as number of complaints make OFT listen.


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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by spartathisis View Post
    The debt being sold or assigned means the same ( I believe), the difference is in the type of assignment. Equitable means they bought the benefit (debt), but none of the duties ie being able to sue in their own name, send statements, add interesticon & charges and arguably not able to report to credit ref agencies. Absolute/legal means they bought everything, they benefits and duties, BUT for this to be legal it should have been Novated. This means you agreed in writing and signed to say so the new creditor taking over the debt, it is a new contract and as such you are a party to it with the same rights as in the first contract (but you wont agree unless you are a retard of course).
    I don't quite agree with this. For novation, yes the debtor does have to agree for both rights & duties are to be assigned.

    Under contract law, duties cannot be assigned. However they can be transferred (delegated).

    The duties are irrelevant as to whether an assignment is equitable or absolute.

    consumer crediticon Act agreements require both rights and duties to be assigned for the creditor name to change. The draftsman of the CCA admits on his own site, duties cannot be assigned and suggests the courts would actually read it as rights or duties (instead of rights and duties).

    The 12 + 30 days still stands for default whichever assignment takes place. It doesn't matter whether the DCAicon deem themselves as creditor or not, either way from the contract extracts I have seen, the DCA is duty bound by the CCA irrespective of whether the request for say a CCA could have been made before they bought it.

    Most of what the DCA's say is a play on words with the CCA, trying to exploit the obvious weakness over duties. CPUTicon closes that door to some extent as it refers to DCA's and creditors alike as 'Traders'. Instead of having the non-court tested debate over the rights and duties in the CCA itself, this Act appears to accept the information in letters may be factually correct, however is does not allow that correctness to dictate what the consumer is entitled to.

    On the interest/charges front. An absolute assignment seems to have to be for a fixed amount therefore a DCA cannot add anything else. Whereas on an Equitable assignment it could be either a yes or no, depending what is actually assigned.

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    Default Re: Assignment of debt vs debt sold - Is there any difference between the 2?

    Quote Originally Posted by spartathisis View Post
    The debt being sold or assigned means the same ( I believe), the difference is in the type of assignment. Equitable means they bought the benefit (debt), but none of the duties ie being able to sue in their own name, send statements, add interesticon & charges and arguably not able to report to credit ref agencies. Absolute/legal means they bought everything, they benefits and duties, BUT for this to be legal it should have been Novated. This means you agreed in writing and signed to say so the new creditor taking over the debt, it is a new contract and as such you are a party to it with the same rights as in the first contract (but you wont agree unless you are a retard of course).

    many DCAicon`s seem to be confused over the difference, including qualified solicitors they have working for them. I have an ongoing tussle with solicitors who have now clearly stated the assignment was Absolute, ohh dear that messes up their ideas to take me to court.

    The argument as to whether they can sell it on comes down to what the agreement states they can do, oh there isnt one! “nemo dat quod non habet”, you cannot give what you do not own. No contract = no proof of ownership.
    I'm sorry but I don't agree with much of what you say.

    1. Equitable assignment - my understanding is that if the assignee wishes to bring proceedings they can do so but those proceedings must be brought jointly with the assignor
    2. Absolute assignments - Do NOT require novation - what they require is a contract/deed between assignor and assignee and that notice of that contract/deed is given to the debtor of the assignment. You have a common law right to inspect the actual assignment

    As to whether they can assign at all - there is a general common law right however I would agree that this is sometimes modified by the original terms and conditions - in any event most t & c's give a general right to assign



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