Rec'd Confusing Letter from Thames Credit - Pls help

[dragonstgeorge]

Hello All,

 

I have asked for a copy of my CCA from Thames Credit regarding a Barclaycard Account for £9000.

 

After the time expired (12+40+10) I sent the template that has been posted on here before.

 

However I have today rec'd a letter back from Thames Credit which reads as follows:

 

We refer to your letter dated 28th Dec.

 

Despite your assertions we still contend that we are not the original creditor and obligations of the original creditor have not been assigned to us.

 

You state that Section 189 of the CC Act 1974 onliges us to supply the required documnents, whether we are the original creditor or not. Presumably you are referring to the definition of a creditor which is as follows:-

 

'creditor' means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have been passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

This appears to be the grounds for your argument that the common law principle that the duties under a contract cannot be assigned does not apply to contracts regulated by the CCA. Recent case law has considered this piont and it has been found that whilst the benfit of the contract may be assigined in accordance with Section 136 of the Law of Property Act 1925, the duties may not. The view of the court being that if parliament had intended to make a significant alteration to the Law of Property Act 1925 when drafting the CCA it would have expressley stated this rather than left it to be inferrred from the definitions section of the CCA.

 

As we are not legally obliged to provide you with a copy of the agreement in response to your request under section 78(1) of the CCA, we are not comminting an offence under Section78(6) of the said Act. We would also point out out that the provision of a true copy of the Deed of Assignment is not a requirement of the CCA and we will not provide you with a copy as it is, by its very nature, confidential.

 

With regard to your statement anout the enforce ability of improperly executed agreements, section 65(1) of the CCa states: An improperly executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. Therefore if an agreement is improperly documented it is not totally enforceable under the CCa as you allege.

 

We will now address your numbered requirements in turn:-

 

1) We will not refund all payments made to Thames credit by you together with interest.

2) We will not remove default that has been registered.

3) We will not be paying compensation under Section 13 of the DPA.

 

We are still waiting for a copy of the credit agreemnt from Barclaycard but will send this to you as sonn as it is available. we would ask for your continued patience while we endeavour to obtain the copy agreement you have requested. In the meantime although we are not prepared to to comply with your numbered requests we will withold collections activity.

 

We are sorry if this is not the response you had expected, if you wish to discuss the case please contact..........etc

 

Yours sincerely

 

Thames Credit

 

 

Please can you advise what my next course of action should be and how should I respond to them?

 

Sorry for the typo errors! Any questions please ask. Thank you for reading this!!

[Tau]

I would just sit back and wait, they are well into default and you could report them to the relevant authorities.

[postggj]

if i were you i would wait and see if they produce a cca as all collection has now stopped, typical crap from a dca

when and if it arrives come back and post it minus personel details.

use photo bucket

may i ask when they last time was when you used the card

[dragonstgeorge]

Hi

 

We haven't used the card for years.......

 

Its not staute barred we were paying the minum payment of £20 per month but they wanted to increse it to more than we could afford. Upon this we did some research and wrote off for our CCA.......the rest is as above.

[Curlyben]

Oh dear another Thames LoP argument.

I have a few words about this, now bear with it as its quite long and involved.

I'll take questions at the end.

 

 

 

Legal assignments of things in action.- (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

 

(a) the legal right to such debt or thing in action;

 

(b) all legal and other remedies for the same; and

 

© the power to give a good discharge for the same without the concurrence of the assignor:

 

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

 

(a) that the assignment is disputed by the assignor or any person claiming under him; or

 

(b) of any other opposing or conflicting claims to such debt or thing in action;

 

 

 

 

 

Ooops think they shot themselves in the foot there.

 

Now under this Act this is an ABSOLUTE assignment so they have been sold ALL the rights AND duties !!

 

To be a legal assignee the assignment would have to be

absolute whereby the rights and duties pass to the assignee.

 

Basically if they did indeed use LoP this means they are now the legal owner of the COMPLETE debt, rights AND duties

 

This is their admission that they know that they don't have a leg to stand on, yet they are trying to bluff it out.

 

 

Sooooo as they are now the legal owners of the complete debt CCA74 s77-79 comes into force.

 

This is a Cabot tactic with the rights but not the duties cobblers.

 

The creditor under a regulated agreement for fixed sum credit, within the

prescribed period after receiving a request in writing to that effect from the debtor and

payment of a fee of 15 new pence, shall give the debtor a copy of the executed

agreement (if any) and of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but

remains unpaid, and the various amounts comprised in that total sum, with the

date when each became due: and

© the total sum which is to became payable under the agreement by the debtor,

and the various amounts comprised in that total sum, with the date, or mode of

determining the date, when each becomes due.

 

Now s77-79 refer to the "creditor", this term is defined in s189.

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

Same applies to s78 and s79 aswell.

 

Now if they are saying that they aren't the creditor as defined by the Act the you cannot possibly be the debtor

“ debtor “ means the individual receiving credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement includes the prospective debtor;

Therefore there is NO debt to pay.

 

Hopefully this clears a few things up.

[ScarletPimpernel]

Recent case law has considered this piont and it has been found that whilst the benfit of the contract may be assigined in accordance with Section 136 of the Law of Property Act 1925, the duties may not. The view of the court being that if parliament had intended to make a significant alteration to the Law of Property Act 1925 when drafting the CCA it would have expressley stated this rather than left it to be inferrred from the definitions section of the CCA.

 

I find myself wondering why, if this is really true, Thames have not followed the usual convention and quoted the relevant case?

[dragonstgeorge]

Thanks for you prompt reply Curly...

 

I think I have an idea of what you have posted....

 

If they have not got the CCA and are not the original creditor and have not been assiged the debt then they cannot chase for a debt which is not leaglly theirs, therefore I owe them nothing as there is no debt?

 

If I have misunderstood, please advise (in simpler terms would be appreciated). Also what should I do next?

 

I have paid appx £800 to Thames can I claim it back?

[Curlyben]

Sorry once you have paid a DCA then the chances of getting any money back are so slim as to be non-existent.

[dragonstgeorge]

I appreciate it may be difficult to recover money from a DCA. But surely if they have sent letters and made false claims on debt they don't own, or is not legally enforceable then this is fraud?

 

Why should these DCA's get away with bullying and threatening people into making payments for debt that is not theirs?

 

There must be some way thru the small claims court that we can try?

 

Any ideas?

[Tau]

Another way of looking at it, is you have borrowed £9000 and only paid back £800 plus any payments that you would have made prior to running into problems.

This is obviously providing that they dont come up with a CCA.

 

Dont take this as a dig at you mate, its not meant to be. Just a generalisation.

[dragonstgeorge]

No offence taken - however this is payment to a company that are not legally entitled to be paid any money. This money has not gone towards paying the legal owner of the debt and thirdly the debt still remains and the default is on my credit file from a company I do not owe money too.

 

I am not trying to avoid paying my debts - but want to ensure I am paying the correct, legal owner of the debt.

 

Surely there should be some way we can have the money refunded to put towards paying the original creditor or the legal owner of the debt?

[NailPost]

You could always ask them for their complaints procedure with a view to taking the matter to the Financia Services Ombudsman (FOS). If they send you the details make a complaint and they have eight weeks to resolve it. If they don't resolve it complain to the FOS. If the FOS investigates it will cost Thames £400 just for the privilege. That's half the cash you paid without any decision being taken. If he finds in your favour you could be quids in.

[dragonstgeorge]

Hi, Thanks for your advice - I will write to them for a copy of the complaints procedure.

 

Does anyone have a template letter or an idea of what my letter should say?

 

I would like to say some thing along the linesof that I am willing to pursue the repayment and will take this to FOS to ensure this is done etc.

 

Thank you

[dragonstgeorge]

Hi - Any one have any ideas what I could say?

 

Thanks