Jump to content


Registered Users

Change your profile picture
  • Posts

  • Joined

  • Last visited


6 Neutral

1 Follower

  1. Well, thank you again. However, I've followed all the links or comments about legislation variously made and nothing that I've seen is definitive. Sure, I can see the force of LoPA/136 and I accept that if this question were being asked in the 1920s that would probably be definitive, even though the "property" there cited is clearly physical or directly related to physical property and even more specifically land based. I'm not a legal professional in any way but what I have learned about law is that it can be worth looking closely at later legislation because of the real modifying effects it may have on earlier, unintended in some case of course. Over the past few decades there's been brought into English and wider UK legislation substantial amounts of consumer protection legislation and I'm aware from other work I've been involved in of issues around precedence and conformity which may also surface here, hence my apparently wilful refusal to accept what others may consider, with reasonable justification, something done and dusted. I note that in the Jones v Link case Mrs Jones's agreement - contract - was terminated and therefore a new agreement must of necessity have been established (though not necessarily in a formal manner, of course) and it's unclear whether the right to sell on was a continuing part of the original contract or perhaps was confirmed by Mrs Jones agreeing with the buyer or whether indeed there was a common law or other right for the original lender to do that quite irrespective of these other points; LoPA indeed appears to suggest that last but that confidence may now be ill-founded for the various reasons I've earlier given. But, anyway, I do appreciate the information and help given, so thank you and others.
  2. Thanks. That's helpful in clarifying that the CCA does apply (as I'd assumed it probably would). However, that doesn't directly address the question of a right to assign regardless and because later consumer and contract legislation will also apply there may be issues regarding the application of LoPA 1925/136. I do appreciate that, as you say, debt purchasers appear confident of their rights and of course they may well be justified in that but despite being standard practice their confidence may be misplaced. After all one could also say that private parking enforcement firms are confident of the legality of their predatory activities but I've personally seen off three instances on behalf of others where it's been clear that they've glibly asserted legal justification where none existed or was dubious at best.
  3. This began on a different thread and was moved here so the first part is missing. However, no specific case was cited and it was stated that it was not a matter of seeking a loophole to avoid debt payment, merely process. In summary, the question was whether, given that a lender may terminate an agreement following a default, and given that the new agreement then between lender and debtor generally does not (or may not) include a provision permitting onward sale, is this onward sale of necessity permitted or can the borrower insist that s/he will continue to deal only with the original lender. Arguments against that view have been advanced in both threads, most particularly referencing the Law of Property Act 1925, section 136. Arguments in favour of that view have also been raised around, specifically, privity and now novation, estoppel and later consumer protection legislation.
  4. Oh, and one thing which has surfaced is the possibility of calling on equitable estoppel, that is, objecting to an action which is contrary to a previous claim or action. Here the point would be that if the original creditor had said nothing about selling on debt but had said or implied that he would continue to deal with the debtor in ordinary creditor/debtor manner, perhaps particularly if he had agreed with the debtor to freeze interest and accept reduced payments until matters improved or the debt was cleared, then he would be barred from taking action inconsistent with those earlier claims or actions. Estoppel is a slippery concept, of course, but can be useful on occasion and that may be so here.
  5. Thanks @Dodgeball I accept that "a thing in action" denotes a creditor's right to be paid and therefore although this Act appears to be entirely about land and buildings and hence mortgage debt (which is several times specified) the inclusion of "thing in action" may thereby extend. From the fairly rapid searching I've done there appears to be disagreement about this. Even though electronic cards and accounts were not in use in 1925 bank loans and debts clearly were and therefore it would seem reasonable that monetary loans should have been specified. Against that "thing in action" may well serve as a catch-all and it's true that there are some comments to the effect that case law clarifying this point exists. However, against this the provisions of the CCA and, elsewhere, contract/consumer protection law may quite possibly have modified some of the provisions even though there's no direct reference to such later changes on the copy of the Act itself. That's going to take a little time to clarify, perhaps. I'm not being dismissive of what you and others have said about this - it's all be very helpful and I appreciate the input - but I think it's something I have to dig around in a bit further. It seems also that if an assignment is permissable, quite apart from issues of termination of an existing contract and the absence of any clause permitting post hoc reliance, there are several complex matters around both advising the debtor and proving good title which may need further investigation. Trouble is I'm away for over a fortnight in a couple of days time and so I probably shan't be able to investigate very thoroughly further until I get back - and then it's Christmas so my comments and responses are likely to be sporadic. But, thanks again very much to everyone who contributed - it's been helpful and informative.
  6. Thanks. that's helpful. I'll check through the law, and more particularly later amendments.
  7. Forget my comment about the 1925 act. I realise from Dodgeball's post what it is and I'm looking through it now.
  8. It’s recognised that banks and the like can sell on debts owed to them by individuals or organisations. However, what seems unclear is on what basis this is legally obligating so far as the borrower is concerned. When a debtor defaults on a loan the lender will serve a default notice in prescribed form and duly terminate the contract on account of non-compliance with the terms on the part of the borrower. It’s that original contract between borrower and original lender that would typically include a clause requiring acceptance by the borrower of the sale of the debt and consequent transfer of liability. Therefore if that original contract is terminated then although the loan liability will remain it seems that the agreement between borrower and lender to allow loan ownership transfer will no longer apply, pending a new contract. As I understand it, the common law principle of privity holds that any contract between two parties (here the original lender and a subsequent buyer of the debt) cannot impose obligations on a third party (here the borrower) not a party to the (sale) contract itself. It follows that the purchaser of a debt can only assert repayment or other authority over the lender by persuading that lender to agree that authority, that is to establish a new contract with that purchaser. This is why, it seems, such companies claim that the debt has been sold to them and encourage borrowers to agree with the transfer of terms, offering inducements such as there being no change to the terms. However, unless and until that is done it seems that the borrower is entitled to continue whatever agreement was reached after default with the original lender, perhaps continuing to pay the original lender rather than the purchaser on such terms as then agreed. Note that this isn’t about the original lender appointing a third party as an agent nor about the validity of serving a notice of debt assignment but specifically on the question of whether in these circumstances outlined the consent of the borrower is needed in order to transfer the original creditor's rights and responsibilities in respect of the debt insofar as that affects the borrower directly. Views? TIA for comments.
  9. Update: I was able to cobble together enough cash to pay the claim for the outstanding amount and the £40.00 court fee and so paid that on the Friday before the court sitting on the Monday. My name was therefore presumably removed from the list as I certainly didn't get any further advice on that, for instance about an order having been made. I then wrote a detailed letter to the council requesting a return of the court fee and making certain arguments about my view that the summons should not have been raised anyway. Nothing happened and so after a wait of six weeks or so I wrote again saying that subject to their reply and to the refund of the court fee not being made I was minded to make a formal complaint to the council CE. I also asked for specific information on the costs incurred by the council in issuing summons (to see how realistic the charge of £40.00 was given the bulk process). Initially there was no reply and then while I was away in November there was a telephone call asking me to ring a particular person but giving no further detail. This was then followed up by a letter some ten days later saying that they'd agreed to refund the £40.00 but giving no further information (for instance about the costs incurred). that's at least a reasonably satisfactory outcome and there it rests. Thanks to everyone for their help.
  10. Yes, that seems reasonable and appropriate. In this particular case I'm not sure without full checking whether the council specified how payments would be allocated although I do remember the (I paraphrase) comment "try to keep up with the instalments due for this [current] year". Certainly I hadn't given the matter a great deal of thought, generally seeking to agree repayment over time with the council according to my means and in that seeking also to avoid legal action or additional costs, but if pressed I suppose I'd have drawn on the general business situation as I understood it, namely that I was paying towards a totality of debt to the council and generally clearing earlier and longer-outstanding debts.
  11. Thanks for the comment and observations. The claim that payments are ordinarily allocated to the latest outstanding amount and then, if appropriate, carried over to earlier sums due is interesting, not least because it seems directly contrary to ordinary business practice but also because it can lead to exactly the situation in which I found myself, namely that by treating the sum due to the council as a single debt gradually being reduced as possible and as broadly agreed with the council (allowing, of course, for the monthly increase/update on the continuing part) I end up with additional costs because the council has got tired of the speed of reduction and acted without further reference to me. On Friday with the payment of my state pension and some funds in hand I had just enough to meet the total claim, including the £40 costs, and I then paid that, following it up with an immediate email saying what the payment was for, noting that I'd had no response to my earlier email of complaint (not formal complaint but including the requested remission of the summons charge) and copying that in, and approximately repeating that whole text in a printed letter sent that day with a certificate of posting. I've so far had no response. According to my allocation statement (that payment was to meet the amount claimed in the summons) that should have stayed the liability order hearing and no further costs should have accrued. There is, however, now a possible complication arising from what you say in your comment, namely that Friday was also the day on which the next monthly instalment for the current CTax liability was due; hence if my statement is ignored and the council allocates the relevant amount from my payment the effect would be that come yesterday, Monday 5, the amount claimed in the summons would only have been partially paid, not fully as I intended and that in turn would open the way for a liability order and attendant additional costs. Needless to say I'd object strongly to that. Subject to further comment and advice here I plan to allow the council the rest of this week to reply, that "reply" to include information on the withdrawal or continuation of the court hearing on Monday and a decision on withdrawing the summons fee of £40.00. Subject in turn to that I'm looking to make a formal complaint next week, probably following a telephone discussion or even a discussion visit. Essentially my aim is to get back to the position where the total amount owing is brought back on track and the £40.00 is allocated as credit to CTax due. If the Friday payment is, as I intended, allocated to clearing the 2015/16 debt then that leaves just the latest, September, payment on the current account due but because the Friday payment more than cleared me out that will have to wait and be dealt with over at least two months; however, even with that outstanding I've managed to make a significant reduction compared with the situation at the start of the year and so I'll argue that I've done what I can and that the council needs to show some understanding of that and act tolerantly. We'll see!
  12. Thanks. I suspected that would be the case and so it makes sense to try to scrape up the whole amount somehow.
  13. Thanks again. I've only been involved in three court cases ever (one a defence against Companies House, one suing a bank, and one many years ago against a lawyer house tenant) and I've won every one so maybe that's a good omen! Or maybe my luck will break, of course. As I say, we'll see, if it comes to that - but I do note your caution here and I appreciate the advice. There's a further point on which I'd welcome clarification: if I pay the outstanding CTax in time (£444.00) but not the £40 court fee does that still leave open the existing court process and, if so, the possibility of a liability order's being made? I'm thinking here that if that's the case then it might be better to try to scrape up the final £40 from somewhere in order to clear everything and then argue that case later whether through a formal complaint or in some other way.
  14. Thanks. While I can see that argument I'd want to point out (in court) if disputed that I would not reasonably be expected to know that payments would be allocated to a later account in the event of a running debt on an earlier one. What irritates me particularly is that although it's extremely difficult for me to reduce the amount outstanding I'm succeeding in doing so, have discussed this in detail with the council, and still end up with a - to my mind - quite unnecessary additional charge of £40.00. Well, we'll just have to see what transpires.
  • Create New...