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About Artie44

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  1. We'll check the CPUTR thread, thank you. I can see that an additional request to the OC should produce what the DCA would provide if they had passed on the request to them. But consider looking at it this way, the DCA says, Dear debtor, the OC has instructed us to collect money from you so pay up or we may send someone round to your home and may take legal action against you. You reply, Dear DCA please prove the debt by supplying a copy of the agreement (S78 CCA request). The DCA says, no, we won't supply it, you must get it from the OC. We'll give you 30 days to do so and then we'll continue to pursue you. You request the CCA from the OC. 30 days goes by and they haven't supplied it, the DCA resumes their collection activity and you get a letter from their solicitors saying pay up or we will take legal action. You complain to the DCA that they are prevented taking legal (enforcement) action because you have not been supplied with the agreement by the OC. The DCA says, we are not responsible for supplying you with the agreement, we are simply acting on behalf of the OC who asked us to collect the debt, so pay up. It seems to me that if (according to S175) the DCA is required to supply the agreement, you only need to deal with them. However If you request it from the OC whilst also dealing with the DCA you are forced into two points of contact which only complicates matters. My OH feels strongly that you end up with more hassle that way. That is why we want to know if we are on firm ground by demanding that the DCA proves the debt by complying with the S78 request.
  2. Here they are: "2.4 For there to be a valid request, it must be made to the 'creditor' or the 'owner', and it is on the 'creditor' or the 'owner' that the duty to comply with the request lies. The definition of these terms is to be found in section 189(1) of the Act. It clearly includes the creditor or owner who enters into the agreement and also anyone to whom the rights and duties under that agreement have passed by operation of law. In the OFT's view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner. It is further the OFT's view that, giving the definition of the terms a purposive construction and one which is most likely to assist the consumer, the 'creditor' or 'owner' includes an assignee5 of only the rights under the contract. Thus, the OFT considers that the 'creditor' in sections 77 and 78 and the 'owner' in section 79 includes a person who has merely bought the debts under the agreement. 5 In referring to assignees and assignments we mean legal assignees and legal assignments only. An equitable assignee who has acquired only the beneficial interest would not be regarded by the OFT as the 'creditor' for these purposes. 2.5 In any event, the OFT considers that it is an unfair business practice to seek to take advantage of any confusion, ignorance or difficulty on the part of the debtor as to whom he or she should send an information request where there has been a sale of the debt. The debtor has asked for information and if the recipient considers that another person is the creditor or owner, the recipient should either inform the debtor or hirer of who it considers is the correct recipient or pass the request on to that person for it to be dealt with by them. In that way the consumer can be assured that any request will be made or will have been made to someone who is prepared to accept responsibility for responding to it." These deal with the situation where the debt has been sold, unless I am interpreting them wrongly. I cannot find any guidance to cover the situation where the DCA is acting on behalf of the OC as their agent to collect the debt. How does the above relate to S175 of the CCA 1974? "S175. Duty of persons deemed to be agents. Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith."
  3. What do you mean by 'send "the responsibility" back'? i.e. continue to request the CCA from the DCA or do what they ask and make the request to the OC? Would you expand on the CPUTR point please?
  4. I had a cup of hot chocolate with a slice of lemon cake..mmm Naughty but nice. ims's summation is why I started this thread. The original question has still not been resolved as others disagree. However in my view it is an important point to clarify because the debtor needs to know whether a DCA has an absolute duty to comply with a S78 CCA request before they can pursue the alleged debt. It may be pedantic to try to find the answer but it is very relevant when you are being pursued by DCA's who put the responsibility back on you to get the agreement from the OC. In one case they put a 30 day time limit before resuming with threats of legal proceedings. My observation to the postings so far are that we are all expressing opinions without sufficient authority to support them. Can someone call in the big guns to sort it Pleeeees..... p.s. I'm happy to drink hot chocolate in the meantime.
  5. BB you can see that your answer is different to P1's in post #8 that "A DCA must comply with that (S78 CCA) request ." Please will you explain if you mean the DCA has the RIGHT to send it back to the debtor. If they do have the right, what is the reason? Surely you cannot both be correct.
  6. Brigadier, it is very simple and I do not understand what it is you do not trust. If I can attempt to explain the motive behind this topic. When dealing with a DCA or an OC it is clearly important to know that when you accuse them of failing to comply with their duty and make a complaint to them you are on solid ground. In this case, as in the one with Robinson Way, the DCA has completely ignored our complaint that they have failed to comply with S175. They both contended several times that as they were not the OC they were not required to comply with a S78 CCA request. They also used the excuse that the OC had instructed them to tell the debtor that the request needed to be made direct to the OC. So what is the debtor supposed to do next? In the Robinson Way example they handed the account back to the OC. In this latest case the DCA has already threatened legal action. That is obviously worrying so we need to know we are on solid ground.to be able to say to them; you are acting on behalf of the OC therefore we are sending the payment back to you as you have an obligation to comply with our CCA request and until you do so you cannot take any action to enforce the alleged debt. Does that allay your suspicions? I am happy to answer your further questions. Can I also say that there are lots of posts on here where well meaning people say what they think is correct but it may not actually be correct. In this topic it would be good to get a definite answer, if there is one. If there is not, then that will help too as we will know better where we stand when faced with the same response from DCA's. Perhaps it can only be resolved with a legal expert answering, please....
  7. "S175. Duty of persons deemed to be agents. Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith." Isn't a duty a definitively absolute requirement?
  8. Now please can you experts confirm the nitty gritty of this situation as I cannot find it elsewhere on the forum: S175 seems to us to mean that when a DCA is acting for the OC it is the DCA's absolute duty to comply with a S78 CCA request. i.e. it is the DCA who must accept the £1 payment made out to them and seek to obtain the agreement fron the OC. Is that assumption the correct one, yes or no?
  9. Thank you all for an interesting and rapid discussion.
  10. Ok, my OH is worried about the DCA knowing about the postings on here and does not want the identity revealed until the situation is resolved. What I can tell you is that almost the same scenario ocurred with another DCA representing a different OC but in that case they said the whole CCA request had to be made to the OC. After the payment was returned four times they sent the account back to the OC. That DCA was Robinson Way. If it is the DCA's absolute duty to accept both the CCA request and payment made out to them, then they must comply and my OH does not want to help them avoid that duty. Oh, and we already sent a detailed complaint letter but they have not replied to it despite a reminder.
  11. Ok, so in this case they have returned the payment twice, saying we must make it payable to the OC. Is my OH doing the right thing by sending it back to the DCA, with it still made out to the DCA? It is now more than three months since the CCA request was made. What should we do next?
  12. So what MUST a DCA do in response to a S78 CCA request as required by the Consumer Credit Act? I am not talking about the OFT Guidelines because they are only guidelines. Perhaps a forum legal expert could help please.
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