Ex UK now in Canada-Canadian DCAs trying to collect

[florence2004]

Hi Everyone

I am new to this forum lark so I am hoping you guys can point me in the right direct. I am originally from Hampshire in the UK but my family and I moved to Canada 18 months ago. I joined the site as i need some advice around the debts we left behind in the UK - in particular 1 that has been passed to link financial and in turn they have appointed a canadian debt company to collect the money. I would like to get some further info around this, like why we were not advised this was happening and if there is anything we can do about it. Can some one point me in the right direction as to where I would post my questions?

 

Thanks!

[jowalshy]

hi florence and welcome to CAG. below is a link to the debt collectors forum for you to post up your problem:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/

[MARTIN3030]

Welcome to the site-will retitle thread and move.

[djweeble]

A lot depends on what kind of debt it is.

 

But from what I remember of other cases similar to this in the past on this forum, Link can't really do much !!

 

They certainly can't take you to court in the UK as you are not resident there.

 

As for the Canadian DCA's give them exactly the same run arround you would give Link, you can insist on all the same docs etc as usual, because it's a UK debt, that'll confuse the hell out of them

[FunkyFox]

Being in Canada its not quite that straight forward I'm afraid. Canada and Germany have reciprocal arangements with the UK when it comes to debt collection and enforcement. Such an agreement means that a UK court can enforce a CCJ using the legal system of the other country.

 

Reciprocal enforcement of judgments. The Reciprocal Enforcement of Judgments Act allows for the

registration of civil judgments obtained in all Provinces, except Québec, in Ontario courts. However,

this procedure is not available for judgments obtained in foreign countries. In order to enforce foreign

judgments, it is necessary to bring an action on the foreign judgment or to start a fresh action. An

exception is provided under the Reciprocal Enforcement of Judgments (U.K.) Act which allows for the

reciprocal recognition and enforcement of Ontario and U.K. judgments in civil and commercial

matters.

 

The above quote is from this document you may find useful (its for Ontario) http://www.creditedu.org/leg_articles/Commercial%20Debt%20Collection.pdf

 

Also you do not need to be resident in a country to be taken to court for debt. If you clear off and leave a load of debt behind all you are likely to come back to is a sack full of judgements by default!

 

Hope this helps. FF

[twofoot]

'Also you do not need to be resident in a country to be taken to court for debt. If you clear off and leave a load of debt behind all you are likely to come back to is a sack full of judgements by default!'

 

Why would you be taken to court with no way of enforcing it? Been there and done it to the tune of 30k

[FunkyFox]

'Also you do not need to be resident in a country to be taken to court for debt. If you clear off and leave a load of debt behind all you are likely to come back to is a sack full of judgements by default!'

 

Why would you be taken to court with no way of enforcing it? Been there and done it to the tune of 30k

 

In most cases a creditor wouldn't know you had left the country (you're hardly likely to tell them) and would proceed to obtain judgement by default as part of their normal collections process. They may not be able to enforce it but it doesn't mean that it won't be there.

 

If for any reason your 'new life' didn't work out then you would have to return to the UK and they would still be there waiting for you.

 

I appreciate that for most people its hardly likely to be a concern, I was simply pointing out that they 'could and would' still obtain judgement once you have left the country, in response to the previous posters point about residency.

[florence2004]

Hi everyone

so here is my story that i'd like some help with if anyone is able to!

 

My husband and I left England in Feb 2007 for a new life in Canada. We had various resons for leaving but it was not necisarily to run away from our debts. We had a total of about 90,000gbp in debt across various different companies, including banks, store cards, credit card ect.

 

Upon our arrival in Canada and know that Canada has a reciprocal agreement with the UK, I started to investigate what could be done about our situation and contacted debt line in teh UK who were incredibly helpful. they sent us a pack with various debt information and said our first port of call was to contact all the companies we owed money to with our new address details and explain that we were not in a position to repay our debts (only hubby was working for the first year of our time here and money was incredibly tight). We were to ask all of them to stop adding any interest to the debts and to give us a final value of debt so that we could make various offers to the regarding repayments. Debtline advised us that we only needed to offer a minimum amount for each of the debts and that the likelyhood was that most companies would write of the debts as it was too costly to recover the monies but that it was not guaranteed. Once we recived our replies we were told to write to all of them again outlining all of the debts we owed and asking that they considered writing off our debts. If this was unsucessful there was a possibility of applying for bankruptcy in the UK as we had no assets and are currently renting our property in Canada this might have worked in our favour.

 

As it happed only 1 company responed to our intial letter which was MBNA, it was a demand for the full outstanding amount of debt - about 6,000gbp in all. I couldn't get over that they responded and no one else did - not even LLoyds TSB whom we owed over 30,000 gbp to.

 

Now we probably didn't make the brightest decision of all with the MBNA debt and hoped that if we ignored them they might go away ( I know not the best thing to do) they sent us several letters that were generic stating that if we didn't pay they would pass it over to a debt collection agency. Now 18 months on it has been handed over to link financial who have appointed a canadian company to collect the debt. We recived no notification fo this untill the debt was in the hands of the Canadian collector. We have been peaking to them regulary to smooth things over and set up a payment plan.

 

Now a friend of ours from the UK who recently visited told me about this website and said to do some investigation as to what we can do. I was on teh understanding that the reciprical agreement was only enforced if the debt had been sold to a canadian company and to do that the selling company had to obtain a court order to do so. The Canadian company has confirmed that they do not own the debt, just that they are collecting on behalf of link. I ask Canada collect how we could be sure that the money that they collected was going towards our debt with MBNA as we have no credit agreement with either them or Link and I was concerned as fraud is a major probelm over here. I also asked them how they were able to persue the debt under Canadian law when the agreement was taken out under english law. All they were able to offer me was reassurance that this was not a fraudlant activity (of course you would say that even if it was) and a copy of the letter from Link asking canada collect to act on their behalf.

 

So my questions are - is there anything we can do about this? If we don't pay Canada collect can the debt be added to our Canadian credit file (we are saving really hard right now for a downpayment on a house and don't want to affect our credit)

Are we safe in thinking the other debts have gone away or should we declare ourselves bankrupt in the UK?

Are link finacial using scare tactics to get us to repay? Am I right in thinking we can make a really low offer to pay the debt and have the rest written off?

 

We are desperately trying to get ourselves sorted out. We know we could have hadled things better with our debts and are not proud of the situation we are in but we really could do with life giving us a break riight now.

 

Thanks for all your help!

[dannyboy660]

Take a look at HMCS website.

To take someone to court for money under CCA'74 they have to have an address, and be resident in England or Wales. (other rules apply elsewhere)

 

If the defendant does not or did not reside at the address at the time of a default judgment, it is worthless, legally void and can be easily struck out. If were that easy to obtain a default judgment there is nothing to stop me sitting here with various web pages and a phone book and getting judgments against anyone, anywhere, and then trying my luck to get them enforced!!§

 

The creditor may not know your address, but HMRC should do if you filled out and returned P85 before or shortly after leaving the country. The creditor can get their tax break but a third party DCA or Purchaser/Factor gets sweet FA, the way it should be, and your conscience is (relatively) clear.

 

s141 of CCA'74 gives jurisdiction of unsecured loans to the County Courts in UK, but the reciprocal agreement means Crown debts such as Tax and money owed to UK Gov can be pursued through a foreign court in the country of your residency.

 

If you already had a CCJ before leaving the UK, it may be possible to enforce it in an EU member state depending on several factors but Canada?? .........probably not.

 

Just an opinion. Feel free to pick it apart.

Edited September 4, 2008 by dannyboy660

[FunkyFox]

I think you may have taken my point a little too literally. I was mearly trying to point out that if you have debts and ongoing arrangements that you then suddenly stop without notice, you will probably end up with a CCJ by default for everyone of them as part of the DCA's normal collections process. Enforceabilty and the getting them set aside is another matter for someone, when and if they return home, or perhaps where they live if it is covered by the Reciprocal Enforcement of Judgments (U.K.) Act, which Canada is.

 

As for a clear conscience thats another matter. To rack up loads of debt and then clear off to another county knowing full well you have no intention of repaying it is obtaining goods by deception or theft (no suggestion that what the OP did by the way). Not something I could do with a clear conscience!

 

I posted the info about the Reciprocal Enforcement of Judgments (U.K.) Act simply to give a heads up to the OP. As far as I can tell it refers to all civil and commercial matters including enforecement for debt and I interpreted it as meaning that a Judgement in the UK could be enforced in Canada.

 

IMHO its up to the OP to do with the info presented as they see fit. I only posted it to balance the view from another member that 'there's nothing they can do' and to 'give them the run around'.

 

Hope that makes things clearer.

[FunkyFox]

Hope this helps...

 

CONVENTION BETWEEN CANADA AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND PROVIDING FOR THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS

Canada,

and

The United Kingdom of Great Britain and Northern Ireland,

DESIRING to provide on the basis of reciprocity for the recognition and enforcement of judgments in civil and commercial matters;

HAVE AGREED AS FOLLOWS:

PART I

DEFINITIONS

ARTICLE I

In this Convention

(a) “appeal” includes any proceeding by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution;

(b) “the 1968 Convention” means the Convention of 27th September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters as amended;

© “court of a Contracting State” means

(i) in relation to the United Kingdom, any court of the United Kingdom or of any territory to which this Convention extends pursuant to Article XIII,

(ii) in relation to Canada, the Federal Court of Canada or any court of a province or territory to which this Convention extends pursuant to Article XII,

and the expressions “court of the United Kingdom” and “court of Canada” shall be construed accordingly;

(d) “judgment” means any decision, however described (judgment, order and the like), given by a court in a civil or commercial matter, and includes an award in proceedings on an arbitration if the award has become enforceable in the territory of origin in the same manner as a judgment given by a court in that territory;

(e) “judgment creditor” means the person in whose favour the judgment was given, and includes his executors, administrators, successors and assigns;

(f) “judgment debtor” means the person against whom the judgment was given and includes any person against whom the judgment is enforceable under the law of the territory of origin;

(g) “original court” in relation to any judgment means the court by which the judgment was given;

(h) “registering court” means a court to which an application for the registration of a judgment is made;

(i) “territory of origin” means the territory for which the original court was exercising jurisdiction.

PART II

SCOPE OF THE CONVENTION

ARTICLE II

1.Subject to the provisions of this Article, this Convention shall apply to any judgment given by a court of a Contracting State after the Convention enters into force and, for the purposes of Article IX, to any judgment given by a court of a third State which is party to the 1968 Convention.

2.This Convention shall not apply to

(a) orders for the periodic payment of maintenance;

(b) the recovery of taxes, duties or charges of a like nature or the recovery of a fine or penalty;

© judgments given on appeal from decisions of tribunals other than courts;

(d) judgments which determine

(i) the status or legal capacity of natural persons;

(ii) custody or guardianship of infants;

(iii) matrimonial matters;

(iv) succession to or the administration of the estates of deceased persons;

(v) bankruptcy, insolvency or the winding up of companies or other legal persons;

(vi) the management of the affairs of a person not capable of managing his own affairs.

3.Part III of this Convention shall apply only to a judgment whereby a sum of money is made payable.

4.This Convention is without prejudice to any other remedy available to a judgment creditor for the recognition and enforcement in one Contracting State of a judgment given by a court of the other Contracting State.

 

PART III

ENFORCEMENT OF JUDGMENTS

ARTICLE III

1.Where a judgment has been given by a court of one Contracting State, the judgment creditor may apply in accordance with Article VI to a court of the other Contracting State at any time within a period of six years after the date of the judgment (or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings) to have the judgment registered, and on any such application the registering court shall, subject to such simple and rapid procedures as each Contracting State may prescribe and to the other provisions of this Convention, order the judgment to be registered.

2.In addition to the sum of money payable under the judgment of the original court including interest accrued to the date of registration, the judgment shall be registered for the reasonable costs of and incidental to registration, if any, including the costs of obtaining a certified copy of the judgment from the original court.

3.If, on an application for the registration of a judgment, it appears to the registering court that the judgment is in respect of different matters and that some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments those judgments could properly have been registered, the judgment may be registered in respect of the provisions aforesaid but not in respect of any other provisions contained therein.

4.Subject to the other provisions of this Convention

(a) a registered judgment shall, for the purposes of enforcement, be of the same force and effect;

(b) proceedings may be taken on it; and

© the registering court shall have the same control over its enforcement,

as if it had been a judgment originally given in the registering court with effect from the date of registration.

 

PROCEDURES

ARTICLE VI

1.Any application for the registration in the United Kingdom of a judgment of a court of Canada shall be made

(a) in England and Wales, to the High Court of Justice;

(b) in Scotland, to the Court of Session;

© in Northern Ireland, to the High Court of Justice.

2.Any application for the registration in Canada of a judgment of a court of the United Kingdom shall be made

(a) in the case of a judgment relating to a matter within the competence of the Federal Court of Canada, to the Federal Court of Canada;

(b) in the case of any other judgment, to a court of a province or territory designated by Canada pursuant to Article XII.

 

This is how I interpreted the legislation. If nothing else I hope it gives the OP the heads up to seek appropriate help in Canada and clarify her position.

[dannyboy660]

.......the Reciprocal Enforcement of Judgments (U.K.) Act, which Canada is.

 

 

I posted the info about the Reciprocal Enforcement of Judgments (U.K.) Act simply to give a heads up to the OP. As far as I can tell it refers to all civil and commercial matters including enforecement for debt and I interpreted it as meaning that a Judgement in the UK could be enforced in Canada.

 

 

REJ (UK) Act is what's used at HMRC/DWP to pursue Tax dodgers and those who owe money to HMG, perhaps through Inheritance tax payable in UK etc for beneficiaries now resident abroad. Its difficult see how it could be used to get a judgment in Canada on a CCA agreement governed by the law of England and Wales on 'unsecured' credit.

 

An unsecured credit agreement signed under CCA'74 is governed by UK law under the jurisdiction of the County Courts according to s.141 of the Act. Under this Act and through subsisdiary UK tax rules, it is possible for a creditor to get tax relief etc under certain cirumstances including if the debtor becomes resident overseas.

 

As you say, the OP will have to make their own decision based on this and other threads, as we don't even know whether it is unsecured money under discussion. It's not clear.

 

I just think it's important to distinguish between CCA'74, unsecured debt etc and that which is covered by REJ because I know from experience it's a tactic used by DCA's to frighten people into paying up, when the debt may have already been settled, may not be legally owned by them, or when there is no other means by which they can extort money from you.

 

Ooopps, sorry, did I say extort?? I meant extract..... ;-)

[FunkyFox]

You are clearly well informed in this regard and I find myself bowing to your greater knowledge and confidence in this matter....however I don't mean to be funny (but it will sound wrong no matter how I put it) but did you read the big block of text above with the red bits in it?

 

It specifically says, 'not for the collection of taxes etc etc'? So I'm even more confused now.

 

As for it not applying under the law of the land where judgement was granted isnt that what a reciprocal arrangement is for? I mean if you take that angle nothing would be enforceable via such arrangements as each country has its own laws. From all the reading I have now done on this subject there seems to be a great deal of evidence that consumer debt is covered by these arrangements between the Canada and the UK.

 

As we agree, its up to the OP now to decide what they should do.

[FunkyFox]

Ever get the feeling you've been wasting your time...http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/158423-ex-resident-being-chased.html

[PGH7447]

Send Link UK a CCA request, and state that has the debt is in English Law you are reluctant to deal with a Canadian firm, and that they Link UK should provide all the relevant paper work to support their claim that they are lawfuly entitled to

a. collect said debt

b. allowed to pass your details to a canadian firm that you have no knowldge of

 

then sit back and see what transpires.

 

in the mean time tell the canadian firm that you are in discussions with link UK and that until these issues are verified that you wil not be dealing with them in any shape or form.

 

if any body else can advise other options then please help

[dannyboy660]

It specifically says, 'not for the collection of taxes etc etc'? So I'm even more confused now.

 

 

Ah yes, you are absolutely right!!! It doesn't apply to Taxes, fines etc etc and also goes on to say it doesn't cover "bankruptcy, insolvency or the winding up of companies or other legal persons" and according to PartIII it is for the enforcement of Judgments which are already in place. It doesn't appear to be of much use to anyone, unless a Judgment has already been made.

 

This is just the same as an EEO - completely worthless unless you have already had your day in a UK court.

 

I think that should clarify quite a few issues

[dannyboy660]

Oh yes, just seen your last post.....

 

 

8-)

[palomino]

You should also ask Link UK, very forthrightly, what authority they have to allow details to be passed overseas. A very clear breach of the Data Protection Act.

[florence2004]

Thanks everyone for the advice. I am very new to this game and i am afraid I don't understand a lot of the terminology you are using.

 

My understanding is that i need to write/contact the canadian debt company and advise that I am corresponding with link and that i won't be paying anything until I have offical paperwork from link?

 

Then I wirte to link and with a CCA request - what is a CCA and why do I need to ask for that?

 

Thanks

[dannyboy660]

You should probably write to the Canadian lot and ask them to put recovery on hold while you contact the original creditor to get information regarding the County Court Judgement pertaining to this alleged debt. Tell them you need a little time to sort things out with the Court in the UK as you had no idea a Judgement had been issued against you and that you intend to appeal against it.

 

I think that might put them off - at least for a while.

 

Perhaps you could demand the CCA and copy of Judgement from the Canadian DCA - that might kill it stone dead anyway.

 

As for the CCA stuff, personally I wouldn't bother wasting my time, but it's over to the CAG experts to get an opinion of whether it's going to worth giving out your personal details etc to a company who will hound you into an early grave, when they have no legal channels open to them......or you could follow the F&F option, depending on your circumstances etc.

 

Good luck.

[florence2004]

Thanks again - whats an F&F?

 

Link financial already have our address so writing to them is not a major drama.

 

As to the debts themselves they are all unsecured credit cards and loans. no major secured ones or taxes - we at least paid those before we left. We would also have been out of the country when any court action was taken.

 

We alos have no intention of returning to the UK to live, just the occasional visit but that won't be for a while.

 

Do link have no legal way to enforce a debt over here? That was one of the questions I asked the Canadian DCA and the seemed to ignore that one just sending me a copy of the letter that link sent them asking them to act. If the debt were to be added to our credit file here I would just appeal it would I?

 

Thanks again!

[dannyboy660]

F&F is a full and final settlement.

 

National Debtline England & Wales | Debt Advice | Factsheet 24 Full And Final Settlement Offers

 

From the information gained from FunkyFox, it appears you don't have to worry about any kind of legal action because it simply won't be possible in Canada unless a valid Judgement already existed before you left the UK which doesn't seem to be the case. This applies to Tax etc too, which is something I didn't realise !!! I've always been under the impression that's what reciprocal agreements actually existed for. This is basically how an EEO works too. (European Enforcement Order).

 

You've already said you have no intention of returning to the UK so although you will still be threatened with everything under the sun from DCA's, in reality you don't have a great deal to worry about.

 

With everything stacked in your favour, you could consider the F&F approach, bearing in mind that Link will have only paid about 5-10% of the face value of the debt, possibly even less. Take a look at the link provided about F&F' because they are better done through a third party and you have to be absolutely certain it finishes the debt once and for all or the remainder will passed around between various DCA's indefinitely.

 

Of course, you could do absolutely nothing and let them wear themselves out which they eventually will. It can take a while for the DCA brain cell to work out that in some (many) cases they really are wasting their time. It's up to you.

 

Good luck.

[twofoot]

For what it's worth I'd suggest you do nothing & pay nothing, eventually you'll hear nothing. I was in a similar situation a few short years back. Got pestered by spanish DCA's. (I had told them my address). Was threatened with everything they could think of. I answered no letters told them on the phone to 'bog off, I owe you nowt'. The debts were spread over 5 DCA's and over time they got the message and now more or less at the statute barred stage but it took 3 years before they all got the message. The secret is knowing what a DCA can and can't do. I doubt if there's a dca around with the bottle to invest enough to get you in court in another country. After all my research I was confident they could do nothing except blow and puff. Before I left the uk I was dealing with my debts but some dca's just won't give up. They pulled every illegal trick in the book including going to other family members and showing my credit file. Also telling others they were liable. This really wound me up so I stopped payment and went to spain, told them were I was and said come and get me. I had a lot of equity in the house I sold and could have paid off 30k no problem. My own view was 30k being my compensation for all their devious exploits. If they know your address they cannot get a cca in uk on a foreign address and all their efforts will be in vain. Chin up and face up.

[florence2004]

thanks everyone!

So I am going to write to Link and ask them for a copy of the CCA and the court judgement indicating that they could pass details on to a Canadian DCA to collect the monies owed (I am pretty sure they won't have the Court paperwork). Thay hould stump them for a while, if they do manage to produce anything I may go down the F&F route. The debt is about 6000gbp the letter says but I know the Canadian DCA has only asked us for $9000 so not quite syre how the maths works there! so we should be able to offer around $1100.

 

It's just the canadian DCA I am worried about - what is to stop them messing with our credit file as we are refusing to pay at this stage?

[florence2004]

here is the lastest communication - any advice would be appreciated.

From: Jackie Appleby [mailto:[email protected]]

Sent: Tuesday, September 16, 2008 6:53 PM

To: 'Ron'

Subject: RE: 179429 - Appleby

Hi Ron

Thanks for the e-mail – yes I had some concerns as to the legality of the collection method of the debt, and Steve did indeed provide me with some information regarding that and link has now supplied us with a copy of the same letter .

I am pretty sure that Collectcanada are following the rules as they should be regarding this matter but seemingly Link Financial is not. We were never advised by them of this debt until Steve wrote to us a couple of months ago and the letter we now have from Link, assigning you as their collectors here in Canada is the first time we have heard from them. We have sought legal advice regarding this and have been advised that Link need to be able to prove that they own the debt firstly, this can be proven by them supplying us with a copy of the credit agreement for the credit card (we have never heard of Link Financial and as I stated to Steve with fraud being such a big thing these days we need a little more that a letter on their headed paper saying that they own the debt to prove this – I am sure you can understand this)

Secondly in order to pursue a debt under Canadian Law they have to have a court judgment from a UK court saying that they are allowed to do this. They would have needed to have been to court in the UK for this judgment whilst we were living at a British address and this as far as we are aware has never happened.

Are you wanting to contact Link for this information or would you like me to write to them directly to ask for it?

Thanks

Jackie

Jackie,

The bottom line here is that Link has legally purchased this debt and you and Alan do owe the money. If we provided this proof for you today, do you have the money to pay this debt off?

This is nothing more than a stall tactic to avoid responsibility to pay a debt that is owed.

Under Canadian Law, a court judgment is needed if the debt is to be pursued legally in court. It is not needed to prove that you ran this debt up and are avoiding trying to do the right thing and repay it.

It also does not change the fact that you do owe the money for this card.

Please contact me in regards as to when we will be receiving payment for this debt.

Jackie,

Reply from Link in regards to your e-mail to me.

Ron

Hi

In short what the customer has described is not accurate.

Under English law, which this account was signed and governed, the previous vendor is not obliged to inform the customer of the sale. Our first contact with the customer was obviously via Collect Canada as you are our agents. To write to the customer prior to instructing you would have complicated the issue for the customer.

I will send the customer our Notice Of Assignment. This letter will clarify the situation but will ask the customer to contact Link direct as this is a generic letter. There is no requirement to go to court. The customer has defaulted this account, hence the sale.

If the customer disputes the account then kindly request her to put her reasoning in a signed letter.

The last recorded payment on the account was £50.00 on 31/07/2007, this is almost 2 years. This is unacceptable.

I have no problems if the customer wishes to discuss this matter with me direct.