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That is true, but if you also look at some of their POCs, they specifically state in the POC that the debt has been assigned to them and they are the actual claimant, not the OC.

 

Yes I have read one or two of them thanks :rolleyes: I've even managed to help a few people successfully defend them.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Sorry Rory,

 

I didn't in any way wish to imply that you hadn't and I have learnt a lot from your posts myself. I was just trying to explain the reasoning behind making my original statement.

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In what way?

 

Be it suggested that:-

 

The Consumer Credit Act 1974 supersedes the Law of Property Act 1925 as it is a newer Act of Parliament, specifically designed to protect the consumer. Section 189 of the CCAct clearly defines the creditor and binds the rights and duties (benefits and burdens) of the creditor.

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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Be it suggested that:-

 

The Consumer Credit Act 1974 supersedes the Law of Property Act 1925 as it is a newer Act of Parliament, specifically designed to protect the consumer. Section 189 of the CCAct clearly defines the creditor and binds the rights and duties (benefits and burdens) of the creditor.

 

Exactly. So in my Humble opinion, the concept of an equitable assignment no longer exists under consumer legislation; therefore Thames Credit's claim of receiving all the benefits, but none of the burdens of the original contract is rubbish

I am a lawyer, but I am an academic lawyer. I do not practice as a barrister or solicitor. You should consult a practising Solicitor BEFORE taking any Court or other action

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"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;

 

Extract from CCA s.189

Live Life-Debt Free

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Sort of like spin a coin ? I sent you a letter ... no you didn't , oh yes i did , did not so .

 

eenie meeny miney mo

 

---

 

Do I deduce from your posts that you have never been into a Court to argue a case?

 

Well it for reasons of lampoonery that I describe it so, not because I actually think a court would work this way .

 

But one thing I do know about court cases thou .. they cost more than a [registered postage] stamp.

Edited by Rahl
include [registered post] ,I think there might be some rare expensive stamps about
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Sort of like spin a coin ? I sent you a letter ... no you didn't , oh yes i did , did not so .

 

eenie meeny miney mo

 

---

 

 

 

Well it for reasons of lampoonery that I describe it so, not because I actually think a court would work this way .

 

But one thing I do know about court cases thou .. they cost more than a [registered postage] stamp.

 

Yes indeedy, they cost a lot more than stamps, recorded registered or otherwise; especially when you consider the judge (a newly appointed one) is earning around £45 per hour, a Solicitor will charge Around £150 per hour, and there's all the other minions and expenses

I am a lawyer, but I am an academic lawyer. I do not practice as a barrister or solicitor. You should consult a practising Solicitor BEFORE taking any Court or other action

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Be it suggested that:-

 

The Consumer Credit Act 1974 supersedes the Law of Property Act 1925 as it is a newer Act of Parliament, specifically designed to protect the consumer. Section 189 of the CCAct clearly defines the creditor and binds the rights and duties (benefits and burdens) of the creditor.

 

HI vulturebank,

 

I believe that you are wrong. If the CCA did "supersede" the LOP then the LOP would have been repealed or amended. Alternatively the CCA would have made specific reference to assignment of debts that would have superceded the LOP.

 

However, neither of these things has happened.

 

The CCA, in defining a creditor merely says that it is the person providing credit or:-

 

"or the person to whom his rights and duties under the agreement have passed by assignment or operation of law"

 

The rights and duties of a creditor under the agreement are still passed as an absolute assignment under the Law of Property Act. The CCA has made no change to that.

 

When it comes to equitable assignment, despite what has been said, this does still exist. An equitable assignment may exist where the requirements for an absolute assignment (as laid out in the LOP) are not saitisfied. The main practical consequence of an equitable assignment is that the assignee must include the assignor in any court action against the debtor. So, if a DCA has a debt under an equitable assignment then they must include the OC as a co-claimant (Weddell and Another [1988] 1 Ch 26).

 

There is often talk here about the likes of Cabot claiming they have taken the rights but not the duties to the debt under the LOP. This is, of course, rubbish.

 

Although it is a general rule that while the benefit of a contract may be assigned the burden cannot and this is what the likes of Cabot are trying to rely on they are wrong.

 

This is due to the nemo dat rule (Nemo dat quod non habet - "no one [can] give what he does not have" ). In other words, an assignor can assign no greater or different right than he actually has nor can an assignee obtain a greater or different right than that held by the assignor.

 

Basically, you can only assign something you own. When a contract is made a party does not own an obligation that it has to another party (that is actually a benefit which belongs to the other party). Since you do not own an obligation then you cannot assign it following the nemo dat rule. This is where they are coming from saying that they only purchased the rights and not the obligations.

 

However,agreements under the CCA are rather different from most contracts. The statute claearly points out the definition of a creditor and also lists the obligations that are required from them in order to gain the benefit of the contract.

 

The courts have also clearly stated that if a creditor does not follow these obligations exactly then they are not entitled to the benefit of the contract:-

 

1. In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

2. Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

3. When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

49 The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

As a result, the obligation of the creditor under the CCA is an intrinsic part of the benefit. In this case the assignee must take the obligation as well as the benefit. If this were not the case then the assignee would have gained a right over the debtor greater than and different from the right of the assignor. Following the nemo dat rule they cannot do this.

 

Hope this has been useful and/or interesting

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I think the main issue here thats been missed is the serving of the NoA because if its absolute then it has to be served in acordance with LoP s.196.....

Live Life-Debt Free

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Hello all,

 

On reading many of the great threads on here, I find myself a bit confused with regard to the following.

 

If you do indeed receive a notice of assignment, which seems to suggest that the DCA does own the debt, can you still request a CCA and deny you owe the debt to the DCA or does the notice of assignment preclude that?

 

canbrilla

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The debt is always a debt however the right to enforce the debt by using the courts requires an executed agreement containing prescribed terms.....what the above is discussing is the right to assign the debt and the issuing of a notice of assignment (NoA).....if the assignment is absolute this must be served by hand or recorded post..

 

Most NoA are issued by the new DCA on the OC headed paper and just posted......Marlin even put them in the same envelope as their hello letter!

 

So......should your DCA produce a compliant CCA but have not served the NoA correctly you have a legal defence...

Live Life-Debt Free

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And the other thing of course , is how would you to know to claim this post was never delivered if you did not receive this statement attesting it to be delivered in the first place [that would be delivered when ? any legislature on that ? , maybe years after the alleged letter of assignment was sent maybe ], by the mere acknowledgement of claiming non delivery you are at least admitting in some part to the knowledge that the actual thing was sent in the first place. So if you do not know about it, you cannot say it was never sent to fufil this denial aspect, to fail to acknowledge a letter sent would be analogous to never knowing it was sent in the first place but deemed to be proof you received it. And that comes back to this 'statement' that might or might not been delivered or their legal or not so duties to even send it . This 'statement' is there to avoid a catch 22 situation, but is in itself part of the same fallacy if not sent by recorded delivery and so why bother to send it and pay the postage on the original letter of assignment

Edited by Rahl
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And the other thing of course , is how would you to know to claim this post was never delivered if you did not receive this statement attesting it to be delivered in the first place [that would be delivered when ? any legislature on that ?, maybe years after the alleged letter of assignment was sent maybe ], by the mere acknowledgement of claiming non delivery you are at least admitting in some part to the knowledge that the actual thing was sent in the first place. So if you do not know about it, you cannot say it was never sent to fufil this denial aspect, to fail to acknowledge a letter sent would be analogous to never knowing it was sent in the first place but deemed to be proof you received it.

 

You would know when the dca makes a claim in the court against you and alleges that they are the owner of the debt and/or they you sent a notice of assignment.

 

 

And that comes back to this 'statement' that might or might not been delivered or their legal or not so duties to even send it . This 'statement' is there to avoid a catch 22 situation, but is in itself part of the same fallacy if not sent by recorded delivery and so why bother to send it and pay the postage on the original letter of assignment

 

Sorry, I don't understand this part

..
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I think it needs prior thread reading initiation.

 

Nobody else can see the logical fallacy in this set up ?

 

Rameses is right, it needs the court in the end to resolve it and the disproportionate costs involved .

 

Anyway, bored of it now , but just found a stamp worth $2.5 million.

Edited by Rahl
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Thank you all for the entertaining banter , which was informative . I shall use it has part of my defence to set aside a CCJ judgement in favour of CCA ,who won in default but only had his name on claim form. If he is absolute owner of debt then he should by law sent me a notice of assignment, if it was a equitable assignment then it should have had OC name on ccj claim. Mke sense or not.

 

Manchester1:)

MANC 1

 

 

 

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  • 6 months later...
HI vulturebank,

 

I believe that you are wrong. If the CCA did "supersede" the LOP then the LOP would have been repealed or amended. Alternatively the CCA would have made specific reference to assignment of debts that would have superceded the LOP.

 

However, neither of these things has happened.

 

The CCA, in defining a creditor merely says that it is the person providing credit or:-

 

"or the person to whom his rights and duties under the agreement have passed by assignment or operation of law"

 

The rights and duties of a creditor under the agreement are still passed as an absolute assignment under the Law of Property Act. The CCA has made no change to that.

 

When it comes to equitable assignment, despite what has been said, this does still exist. An equitable assignment may exist where the requirements for an absolute assignment (as laid out in the LOP) are not saitisfied. The main practical consequence of an equitable assignment is that the assignee must include the assignor in any court action against the debtor. So, if a DCA has a debt under an equitable assignment then they must include the OC as a co-claimant (Weddell and Another [1988] 1 Ch 26).

 

There is often talk here about the likes of Cabot claiming they have taken the rights but not the duties to the debt under the LOP. This is, of course, rubbish.

 

Although it is a general rule that while the benefit of a contract may be assigned the burden cannot and this is what the likes of Cabot are trying to rely on they are wrong.

 

This is due to the nemo dat rule (Nemo dat quod non habet - "no one [can] give what he does not have" ). In other words, an assignor can assign no greater or different right than he actually has nor can an assignee obtain a greater or different right than that held by the assignor.

 

Basically, you can only assign something you own. When a contract is made a party does not own an obligation that it has to another party (that is actually a benefit which belongs to the other party). Since you do not own an obligation then you cannot assign it following the nemo dat rule. This is where they are coming from saying that they only purchased the rights and not the obligations.

 

However,agreements under the CCA are rather different from most contracts. The statute claearly points out the definition of a creditor and also lists the obligations that are required from them in order to gain the benefit of the contract.

 

The courts have also clearly stated that if a creditor does not follow these obligations exactly then they are not entitled to the benefit of the contract:-

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

3.When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

 

49 The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

As a result, the obligation of the creditor under the CCA is an intrinsic part of the benefit. In this case the assignee must take the obligation as well as the benefit. If this were not the case then the assignee would have gained a right over the debtor greater than and different from the right of the assignor. Following the nemo dat rule they cannot do this.

 

Hope this has been useful and/or interesting

 

thanks for the excellent post

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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