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Knocked back by a DCA on a Sec 10 notice?


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This might help.

 

Caveats. 1) Does not apply in Scottish Law!!!

2) Untested and open to criticism and further work.

 

Produced in response to the recent trend within the ranks of DCa's to quote contractual right to process your data.

 

 

 

 

I acknowledge receipt of your letter dated **/**/**** written in response to the notice served upon you under Section 10 DPA 1998 a copy of which is attached for your convenience.

 

I take note that you claim authority to process my data under Schedule 2 Paragraph 2(a) of this Act and acknowledge that you claim no rights under any other subsection of this paragraph.

 

Unfortunately I believe you to be confused as to your legal position in the matter and consider your response to be legally flawed and thus in breach of my Sec 10 request.

 

The next logical step should be for me to seek enforcement of the order under a civil Court action but I feel even at this late stage this is something which can be avoided were we to co-operate in the matter. This letter contains within it a notice under Civil Procedure Rules, I am of the belief that if the CPR Pre Action Protocols are followed diligently by both parties then litigation is likely to be unnecesary.

 

Schedule 2 paragraph 2 (a) of The Data Protection Act 1998 reads thus:

 

2. The processing is necessary—

(a) for the performance of a contract to which the data subject is a party,

 

This is where your confusion arises, I shall try and explain it simply for you. Might I also suggest that if you require further clarification in the matter that you acquire yourself a copy of the excellent book on the Law of contract written by Guenther Treitel? This is a highly informative tome and is frequently used as a reference in these matters by Lawyers and Judges right up to the very highest levels of the British Judiciary system.

 

 

You seem to believe that a contract exists between yourselves ******DCA****** and myself *****you***** yet no such lawful contract exists nor has it ever existed.

I believe the confusion you suffer and the mention of contract arises from your purchase under a debt sale agreement and claimed assignment under Sec 136 of The Law of Property Act 1925 of an account originating with ***** OC ***** such account carrying my name.

 

Under English Law only the benefits and interest thereupon can be assigned (subject to equities), the burden/obligations of the contract itself cannot. For the contract to be legally assigned to yourselves a novation must occur. This novation would explicity require the consent of both parties to the original contract in order that the obligations of that contract be transferred to a third party. I categorically state that at no time have I entered into a novation with yourselves and **** OC **** as the other parties. You are attempting to claim duties which lawfully rest with **** OC **** under contract by virtue of an assignment and this is not lawfully meritorious. This is common legal ground, without this basic matter of legal principle you could claim rights under Schedule 2 Para 2(a) DPA 1998 to process data relating to any contract to which I am a party. You could for example claim right to share data about my mortgage or my car insurance or even my golf club membership. The law and the slightest modicum of common sense tells us that you may not take these actions because you are not a party to the contract involved.

 

Sadly you apply a different logic to the case in hand. You claim to be party to a contract *****THEN EITHER DEPENDING ON YOUR CIRCUMSTANCES***** which was signed on the **/**/**** between the following parties: Myself and ***** OC ***** yet I can find no mention of your company name on this contract or included as a named party within a clause in the terms and conditions expressly entitling the OC to lawfully assign the contract to the explicity named party (ies). ***** OR IF NO CCA PRODUCED ***** yet have failed to produce a true signed copy of this contract despite request. I personally and the Courts most definitely will expect you to produce any such written document in the event of litigation.

****Back to everyone again*****

In the absence of any documentation to support your claim that myself and **** DCA ***** are legally bound by contract I am left with no option but to refute your claim made under Schedule 2 Para 2 (a) of The Data Protection Act 1998 as lawfully unmeritorious.

 

As I state above the next logical step would be for me to seek enforcement of the Section 10 order through the County Courts.

 

It would be both churlish and a breach of protocols to rush into litigation against yourselves without satisfying all other avenues of settlement in this matter and establishing both the merit(s) of my cause(s) for any intended action and my being able evaluate the likelihood of success prior to proceedings being initiated.

 

The facts of the matter are thus:

 

You claim right under contract to process my data and I state you do not have right under contract since no such contract between ourselves exists nor ever has existed.

Surely common sense tells us that litigation with a view to enforcement can easily be avoided upon production by yourselves of either of the following two documents?

1) A true copy of a contract signed and entered into between myself **** Your Name ***** and your Company ***** DCA *****

2) A true copy of any document of or purporting to be representative of a novation between myself ***** Your Name ***** and ***** OC ***** and ***** DCA *****. Such document to bear the signatures of all three parties.

 

Receipt of either of these documents will be looked upon by myself as proof that you have contractual right to process my data as you claim and no action with a view to enforcement against your company under Sec 10 DPA 1998 will be forthcoming.

 

I enclose within this letter a request made under CPR 31.16 of the Civil Proceedings Rules. I am making this request from yourselves in an attempt to clarify matters thus:

 

I am embarrased to admit that I have no knowledge of any contract existing between myself and your company and disclosure of these documents will help quickly establish the authenticity of your claim that such contract exists, whether any cause of action exists and may help me make an educated appraisal of the likelihood of succes of any action I might bring against you.

 

I am embarrased to admit that I have no knowledge of any novation existing between myself, **** OC **** and your company and disclosure of these documents will help quickly establish the authenticity of your claim that such a novation occured, whether any cause of action exists and may help me make an educated appraisal of the likelihood of succes of any action I might bring against you.

 

Disclosure of these documents at this stage will also undoubtedly save costs and court time should litigation ensue but more importantly might help us as the two parties involved find resolution without having to resort to litigation which I'm sure you will agree would be a far more amicable and likely less expensive way to conduct this dispute.

 

I am a reasonable person and although this matter has been ongoing between us for some time now to my detriment I am still prepared to make the following gesture of goodwill towards yourselves with a view to avoiding litigation. I am prepared to give you 28 days from the date of posting (which as been recorded) in order to do either of the following:

 

1) Comply with the lawful request made under Section 10 DPA 1998 on **/**/****

 

or.

 

2) Provide all such documents as I request in the attached formal CPR 31.16 request notice enclosed within this letter.

 

Failure to comply with neither one of these requests will result in my reviewing the situation. At that stage I may feel it is appropriate to issue you a reminder of your obligations and grant you an extension in order that you may comply or if I decide that you are deliberately frustrating matters I may at that stage look to begin proceedings against yourselves without further notice. Such proceedings will be in order to obtain enforcement of the Section 10 1998 notice of the **/**/****, a notice you acknowledge being in receipt of. Notwithstanding the fact that you are indubitably in breach of your obligations to keep any data pocessed accurate and up to date it is likely that any application for enforcement will centre upon the fact you claim to be in contract with myself. Obviously you will be called upon by the Court to provide a copy of this contract for inspection and analysis.

 

As a further gesture of goodwill towards you in this matter I hereby state that I am prepared to meet your reasonable costs subject to these costs being incurred solely in respect of sourcing, reproducing and delivering the requested documents to me. You may supply me with a particularised invoice for these costs and I shall meet them promptly although I would expect prior to any payment being made that all the documentation made within the CPR 31.16 request has been provided to me.

 

If there is anything in this letter which you do not understand I suggest you seek advice from a solicitor or a consumer credit advice centre such as the Citizens Advice Bureau.

 

 

Faithfully.

 

 

XXXXX

 

 

 

 

Enclose this:

 

 

FORMAL REQUEST FOR INFORMATION UNDER

CPR part 31.16

 

This request to be read in conjunction with enclosed letter dated **/**/****.

For your convenience I enclose a true copy of CPR 31.16 as a further attachment.

 

Dear Sirs

 

Account number

 

On **/**/**** I served you notice under Sec 10 of The Data Protection Act 1998 to cease and desist, not to start processing or to provide good reason as to why you might continue to process my data and share it with third parties in a manner which is causing me damage.

 

I enclose a copy of the original notice sent you under Sec 10 DPA 1998 for your convenience.

 

You responded with the incorrect assertion that you have right under Schedule 2 para 2(a) of the DPA 1998 since you believe me to be party to a contract with yourselves.

I have in the letter enclosed with this notice and cross referrenced to this notice set out the reasons why I feel you are incorrect in this assumption of right under contract.

I have also quite clearly stated that the overriding principles of this CPR 31.16 request are to establish the following:

 

1) Whether any such contract exists or has existed.

2) In the event that such contract exists whether your claim is compliant with the terms of that contract.

3) Whether any novation of a contract has occured in your favour from any contract ever entered into between Myself and **** OC ****

4) In the event that such contract or novation exists and contain contractual rights in your favour that I may immediately cease and desist from seeking litigation against yourselves in the matter.

5) In the event that such contract or novation does not exist that I may accurately assess the case with a view to establishing a cause for action.

6) In the event that such contract or novation does not exist that I may make informed assessment of the likelihood of success of any litigation I may bring.

7) In the unlikely event that I have entered into contract containing a provision or clause therin that the contract may be assigned to your company in its entirety without further involvement in the matter by myself, sufficient documentation should be provided in order that I might make informed assesment whether that assignment has been perfected in law and that such assignment is valid.

 

Your compliance with this request may well result in enforcement action being deemed unnecesary and/or unmeritorious by myself and is very likely to save both parties much time and inconvenience. It will also have an overbearing influence on any decision I might take in the future as to whether to seek enforcement so it is quite pertinent to state that much Court time and expense might be avoided by your complying with this simple request.

Since this matter as it stands now is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, i must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose these documents to me.

 

I hereby formally request from yourselves the following documentation in order that the overriding principles of this lawful request may be met.

 

a) A true copy of any contract entered into between myself **** Your name **** and ***** DCA *****, such document to bear the signatures of both parties.

or.

b) Only if the document referred to as 'the contract' in (a) above cannot be produced then either of the following two documents:

(i) A sworn statement that such document does not exist.

or:

(ii) A true copy of any document of novation between the three parties namely myself **** your name ****,and ***** OC *****, and ***** DCA *****, such document to be bearing the signature of all parties to the original contract and the novation thereof.

or.

c) A true and signed copy of any contract agreement entered into at any time between myself **** your name ****, **** OC **** such agreement to be bearing the name of your company ***** DCA **** explicitly named as a third party to whom any rights under this contract may be assigned without the consent of both originating signatories to the contract.

and

d) A true copy of the deed or document of assignment of the account in question. Such document to have been executed in accordance with Sec 136 Law of Property Act 1925.

e) Proof that this assignment was lawfully perfected by virtue of a notice of assignment served in accordance with Sec 196 of the Law of Property Act 1925.

f) A copy of any contract of sale between **** OC **** and **** DCA *****. I permit this document to be reducted in order to remove any commercially sensitive information but am explicit that any terms of the contract purporting to pass rights to the original contract whether explicit or implied be left in their entirety.

g) Proof of purchase of this account from ***** OC ***** such proof to be dated.

h) In the event that any documentation mentioned in sections a) to g) of this request cannot be supplied; Written explanation as to why such documentation cannot be produced.

 

Failure to provide this information may result in me initiating litigation against yourselves without merit or unneccesarily and without further notice subject to the conditions I offer you in the accompanying letter.

 

Additionally i will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

 

Please confirm by no later than 4pm on **** 14 days from date of issue ***** that you will comply with my request or if you will not comply, please provide your reasons in writing

 

Regards

 

XXXXXXXXXX

And this:

 

Disclosure before proceedings start

 

31.16

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(2) The application must be supported by evidence.

 

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

 

(b) the applicant is also likely to be a party to those proceedings;

 

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

 

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

 

(ii) assist the dispute to be resolved without proceedings; or

 

(iii) save costs.

 

 

 

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

 

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

 

(ii) in respect of which he claims a right or duty to withhold inspection.

 

 

 

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

 

(b) specify the time and place for disclosure and inspection.

 

 

 

( And don't forget to include a copy of your original Sec 10 notice) Edited by Toulose LeDebt

You have the right to food money.

If you don't mind a little investigation, humiliation, and if you cross your fingers rehabilitation..............

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Fantastic - will be pointing people in the direction of this thread - bookmarked :)

:)I am not an expert, but I can give good advice about Brighthouse:)

 

Am learning more and more about DCA's too :)

 

I have no legal experience and all advice given is based on the knowledge I've gained from this site.

 

<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!

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What a fab letter! :p

Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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How absolutely brilliant is that - just what I am looking for, it will be in the post first thing Monday morning, so will be one of the first to hit this particular DCA!! Many, many thanks.;)

Every journey begins with a single step :):)

 

Please note: I have no qualifications in this area - my advice is learned from the wonderful members of this Forum. Thanks to you all for your help.

 

If you have found my post helpful please leave a short message by clicking the star to the left of my profile - Thank You

 

The only person entitled to your Personal Finance details is a Judge not a DCA

 

Move all banking activity to another banking group if you have a dispute - your funds can be used to offset debts within the same group.

Be careful with Banking details (card/account numbers) as these can be used to take unauthorised payments.

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How absolutely brilliant is that - just what I am looking for, it will be in the post first thing Monday morning, so will be one of the first to hit this particular DCA!! Many, many thanks.;)

Ditto! We can bamboozle them together lol :D

Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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How absolutely brilliant is that - just what I am looking for, it will be in the post first thing Monday morning, so will be one of the first to hit this particular DCA!! Many, many thanks.;)

 

Which DCA are you hitting with this?

 

Ditto! We can bamboozle them together lol :D

 

Presumably Lowells and Cabot are both getting these letters from you :D

 

Looking forward to all their replies :)

:)I am not an expert, but I can give good advice about Brighthouse:)

 

Am learning more and more about DCA's too :)

 

I have no legal experience and all advice given is based on the knowledge I've gained from this site.

 

<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!

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Lowells!!!

Every journey begins with a single step :):)

 

Please note: I have no qualifications in this area - my advice is learned from the wonderful members of this Forum. Thanks to you all for your help.

 

If you have found my post helpful please leave a short message by clicking the star to the left of my profile - Thank You

 

The only person entitled to your Personal Finance details is a Judge not a DCA

 

Move all banking activity to another banking group if you have a dispute - your funds can be used to offset debts within the same group.

Be careful with Banking details (card/account numbers) as these can be used to take unauthorised payments.

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Lowells!!!

 

Nice double whammy for them then :D

:)I am not an expert, but I can give good advice about Brighthouse:)

 

Am learning more and more about DCA's too :)

 

I have no legal experience and all advice given is based on the knowledge I've gained from this site.

 

<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!

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Which DCA are you hitting with this?

 

 

 

Presumably Lowells and Cabot are both getting these letters from you :D

 

Looking forward to all their replies :)

Oh yesssssss!!!!!!!!! :D

Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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Lowells!!!

DOUBLE fun! :D

Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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Presumably Lowells and Cabot are both getting these letters from you :D

 

 

Words to make a grown man cry like a girl..........

 

Thanks for your kind words folks. Good luck!!

You have the right to food money.

If you don't mind a little investigation, humiliation, and if you cross your fingers rehabilitation..............

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Under English Law only the benefits and interest thereupon can be assigned (subject to equities), the burden/obligations of the contract itself cannot.

 

I understood that an absolute assignment under the Property Act does include burdens and obligations. Are you sure that what you say is correct?

I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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I understood that an absolute assignment under the Property Act does include burdens and obligations. Are you sure that what you say is correct?

 

Positive.;)

 

Tolhurst v Associated Portland Cement Manufacturers [1902] 2 KB 660 CA at 668

 

In Tolhurst v Associated Portland Cement Manufacturers (1900) Limited11 Tolhurst, the owner of land, contracted with the Imperial Portland Cement Company ("Imperial") to supply them with 750 tonnes of chalk per week for 50 years at 1s a tonne. Imperial went into voluntary liquidation and all the land, goodwill, and pending trade contracts including the contract with Tolhurst were assigned to an associated company ("Portland"). Imperial gave notice to Tolhurst that they were in liquidation and their land and business would be transferred to Portland. Tolhurst then wrote to Portland offering to supply them with chalk at 2s a tonne. Portland refused to pay that amount and claimed they were entitled to the benefit of the contract between Tolhurst and Imperial and to pay 1s tonne for the chalk. They claimed the contract with Imperial was assignable and no personal element of individual skill or competency was present. They argued no additional burden was thrown upon Tolhurst which would entitle him to repudiate the contract.

Tolhurst argued that when the contract was made, there was no intention express or implied on the part of Tolhurst to contract except with Imperial, or to incur any liability to a company which was not even in existence at that time. They argued that Imperial had rendered itself powerless to perform the contract by entering into voluntary liquidation as it had no assets, and Tolhurst was entitled to treat that as a repudiation of the contract.

In the first instance Tolhurst was successful. The decision was appealed by Portland and Imperial to the King's Bench. The question before the Court was whether the contract made between Tolhurst and Imperial could be enforced against Tolhurst when Imperial had assigned the contract to Portland without the consent of Tolhurst. Collins M.R. held:

 

 

It is, I think, quite clear that neither at law nor in equity could the burden of a contract be shifted off the shoulders of a contractor on to those of another without the consent of the contractee. A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to someone else; this can only be brought about by the consent of all three, and involves the release of the original debtor............

 

 

{Anyone who has bothered wasting five minutes of their life reading Basil Rankines latest get rich quick scheme will be falling off their chairs laughing at reading this judgment: A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to someone else;}

 

Back on topic:

 

Reference here: Jenkins vs Young Brothers Ltd. 2005

 

 

  1. THE ISSUE BETWEEN THE PARTIES - ASSIGNMENT OR NOVATION?
  2. The main point in issue is a relatively narrow one. Did the Deeds of Agreement validly assign the CFA from Girlings to T.G. Baynes and thence from T.G. Baynes to TSP (as Mr Hutton argues), or did a novation arise (as Mr Williams contends) whereby the original CFA ended upon the instruction of T.G. Baynes, to be replaced by fresh agreements, the first between Mr Jenkins and T.G. Baynes and the second between Mr Jenkins and TSP?
  3. Treitel (The Law of Contract 11th Edition) defines "assignment" as the process under which the benefit of a contract may be transferred to a third party without the consent of the party liable under the contract (here Mr Jenkins) (see pages 701 to 702). For an assignment to be valid the following requirements must be satisfied (see Treitel pages 678-682):

    1) the assignment must be in writing under the hand of the assignor (s.136 Law of Property Act 1925)

    2) there must be an intention to assign

    3) the assignment must be communicated to the assignee by the assignor

    4) notice of the assignment must be given to the debtor (here, for this purpose Mr Jenkins).


  4. "Novation", on the other hand, takes place "where two contracting parties agree that a third, who also agrees, shall stand in the relation of either of them to the other. There is a new contract and it is therefore essential that the consent of all the parties shall be obtained." (see Chitty on Contracts, 29th Edition, paragraph 19-085). It follows that the effect of a novation is not to assign or transfer rights or liabilities, but rather to extinguish the original contract and put a new one in its place.

41. At the cornerstone of Mr William�s case lies his submission that only rights but not obligations can be assigned (see his skeleton argument paragraph 6). Here, the person to whom the benefit of the contract was purportedly assigned (first T. G .Baynes and thereafter TSP) made no promise to perform the obligations of the assignor (first Girlings and subsequently T.G. Baynes). In other words, the assignee never took on the assignor�s burdens under the contract. Girlings� liability to continue to act for Mr Jenkins was terminated when he instructed T.G. Baynes; at that point the CFA ended and Mr Jenkins and T.G. Baynes entered into a fresh retainer to do the work. The process was repeated when Mr Jenkins instructed TSP in place of T. G. Baynes and accordingly no valid assignment of the CFA had taken place on either occasion.

 

42. Mr Williams� submission reflects what according to Treitel is the "general rule", namely that the assignee of a benefit of a contract makes no promise to perform the obligation�s of the assignor and in such a case, the assignee does not become liable under the contract. (See Young v Kitchin [1878] 3EX.D.127).

 

43. However, Treitel sets out exceptions to this general rule (see Treitel page 702). An example is where the obligation to perform a contract in place of the assignor is annexed to the assignment of the benefit of the contract. Where this is the case, the assignee must perform the burden of the contract or forego the benefit if he fails to do so. Treitel describes this as the "conditional benefit principle", which arises where the right assigned is conditional or qualified, the condition being that certain restrictions should be observed or certain burdens assumed (see Tito v Waddell (No.2) 290 et seq).

 

 

Assignments of Contractual Rights

The burden of a contract cannot in principle be transferred so as to discharge the original contracting party without the consent of the other party. There are two exceptions.

 

 

 

If the contractual rights have been assigned, those rights will be subject to the original contract. An instance of this, Britain & Overseas Trading Ltd v Brooks Wharf Ltd, an exemption clause in the original contract was binding on the assignee of the contract. Such cases are examples of the "conditional benefit principle". This principle applies where the right which has been assigned is on the condition that certain restrictions are observed. These are an intrinsic part of the right, so that the burden is annexed to the benefit of the contract. Therefore, the person with the benefit must perform the burden, or otherwise forego the benefit. Whether a conditional benefit arises is dependent upon the proper construction of the contract.

The second exception is the pure benefit and burden principle, which arose in the case Tito v Waddell (No.2), where the rights given in the contracts were not qualified nor conditional on certain obligations, but still rendered the defendants liable.

 

 

 

Tito v Waddell No.2 (1977)

 

[1977] Ch 106. The British Government granted an exclusive licence to a company to mine phosphates in the British settlement of Ocean Island. In 1920 the management of the mining operation was put in the hands of a a commissioner appointed by the Crown, who was eventually given authority to acquire land compulsorily. The instructions to the commissioner was that any profits or royalties arising from the purchase were to be `put on trust' for the previous landowners. It eventually fell to be decided whether the `trust' envisaged here was an ordinary express trust, which would have put the commissioner in a fiduciary position with respect to the former landowners, and therefore imposed certain obligations on him. The court held that the word `trust', used in the present sense, imposed an obligation to act in a certain way, but not the fiduciary relationship of a real trust.

 

So the honest answer to your question is 'Sometimes'.

 

However the DCA is up against not being explicitly named in the T&C's covering the original contract.

That's if such a contract can be proven to exist (ie is there a CCA).

If found the CCA is subject to scrutiny.

As are the original T&C's in force at time of signing. (If they exist and can be produced).

They also have to prove that the contract involving the debt sale invokes the 'conditional benefit principle' which as it happens are almost always terms in the original contract giving the other party recourse or exemption under particular circumstances (ie. to the debtors advantage in these instances so extremely unlikely to be included).If it does then you still get to scrutinise exactly what is transferred under the 'conditional benefit principle'.

All the more unlikely that it does involve CDP when you consider that your account will have been bundled up with many others and sold as a package of debt. Each debt being subject to all manner of different legal qualifications.

If your account is sold with a 'general' CDP arrangement, the specifics of your T & C's that you accepted will likely defeat and override this under legal examination.

 

If 'the right to act as Data controller in respect of this account' is not explicitly included as a contractual right under 'CBP' then Game over.

 

Then.......................................................

 

If they can prove all this they then have to prove that the account and contract attached thereto was lawfully assigned under Sec 136 of The Law of Property Act 1925 and perfected in law by means of a notice to the 'debtor' such notice to be compliant with Sec 196 of LOP 1925.

 

 

Technically yes there is a get out clause.

 

I suggest even if they find it they will find that 1) It has not been incorporated into the original contracts.:D and 2) They've made such a chimps tea party out the whole assignment under Sec 136 LOP 1925 business that you shall be enjoying DCA on toast for breakfast for quite some time to come.:D:D

 

I have also noticed many of the NOA's flying around recently explicitly state 'they are the lawful assignee of the benefits but not the burden of the account'. Game over if you have one of those little beauties.

Edited by Toulose LeDebt
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You have the right to food money.

If you don't mind a little investigation, humiliation, and if you cross your fingers rehabilitation..............

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Toulose, Is the third one (Disclosure before proceedings start) a letter or an information sheet to go in with the other two letters?

Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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Toulose, Is the third one (Disclosure before proceedings start) a letter or an information sheet to go in with the other two letters?

 

Just an information sheet to go in with it for their convenience. Saves them having to go out and find an adult who can read well enough to hold a library card.

 

You are being helpful here to the point of obsequiousness not because you feel full of love for them but because if it does go to litigation you will find you will by so doing have already gained a position of strength and also fiduciary strength as you will have bent over backwards to work with the DCA to resolve the matter without litigation and any shortcomings or breaches of protocol will be directly attributable to the DCA and easily provable.

 

If you've followed the rules, been polite helpful and tolerant and they haven't then they're unlikely even to be awarded costs in the unlikely event you lose your enforcement application hearing.

 

Could make the whole thing a bit of a no lose gamble if played correctly.;)

 

Although as gambles go I'd say the odds were very heavily stacked in your favour for the reasons set out above.

You have the right to food money.

If you don't mind a little investigation, humiliation, and if you cross your fingers rehabilitation..............

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subbing ....

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

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Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

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Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Just an information sheet to go in with it for their convenience. Saves them having to go out and find an adult who can read well enough to hold a library card.

 

You are being helpful here to the point of obsequiousness not because you feel full of love for them but because if it does go to litigation you will find you will by so doing have already gained a position of strength and also fiduciary strength as you will have bent over backwards to work with the DCA to resolve the matter without litigation and any shortcomings or breaches of protocol will be directly attributable to the DCA and easily provable.

 

If you've followed the rules, been polite helpful and tolerant and they haven't then they're unlikely even to be awarded costs in the unlikely event you lose your enforcement application hearing.

 

Could make the whole thing a bit of a no lose gamble if played correctly.;)

 

Although as gambles go I'd say the odds were very heavily stacked in your favour for the reasons set out above.

Thanks. :D

Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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ALL READY TO GO!!!!! sending by Recorded Delivery Monday first class. I guess anyone living nearby on tuesday, should cover their ears, or beware of flying dummies:D:D:D

 

Seriously though, many, many thanks.

Every journey begins with a single step :):)

 

Please note: I have no qualifications in this area - my advice is learned from the wonderful members of this Forum. Thanks to you all for your help.

 

If you have found my post helpful please leave a short message by clicking the star to the left of my profile - Thank You

 

The only person entitled to your Personal Finance details is a Judge not a DCA

 

Move all banking activity to another banking group if you have a dispute - your funds can be used to offset debts within the same group.

Be careful with Banking details (card/account numbers) as these can be used to take unauthorised payments.

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TLD,

 

While I agree with much of what you say there is one bit where I feel that you're wrong:-

 

Under English Law only the benefits and interest thereupon can be assigned (subject to equities), the burden/obligations of the contract itself cannot. For the contract to be legally assigned to yourselves a novation must occur. This novation would explicity require the consent of both parties to the original contract in order that the obligations of that contract be transferred to a third party.

 

If you see the cases of Halsall v Brizell [1957] Ch 169 and Rhone v Stephens [1994] UKHL 3 you will see that a burden can be assigned if it is relevant to the exercise of the right. And, of course, there is the nemo dat rule.

 

There was a discussion about it here:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190881-assignments-could-useful-2.html#post2066715

 

regards

 

nicklea

  • Haha 1
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Just confirmed that my letter, as above, was received by Lowells on 31st March 2009. Sent 1st Class Recorded on Monday 30th March - No response as yet.

Every journey begins with a single step :):)

 

Please note: I have no qualifications in this area - my advice is learned from the wonderful members of this Forum. Thanks to you all for your help.

 

If you have found my post helpful please leave a short message by clicking the star to the left of my profile - Thank You

 

The only person entitled to your Personal Finance details is a Judge not a DCA

 

Move all banking activity to another banking group if you have a dispute - your funds can be used to offset debts within the same group.

Be careful with Banking details (card/account numbers) as these can be used to take unauthorised payments.

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