UK Debt Sold & Transferred to Australia - Help Please !!

[Nicoblue]

11

Edited May 14, 2009 by Nicoblue
posted twice

[Nicoblue]

OK Guys - A Tough One, and really Woried about this.

I had a debt ( Appx 15k)with MBNA in UK, and carried on making payments as per agreement, however when I fell on Harder times I had to reduce the payments, I advised MBNA, and they would not accept, but told me to keep paying what I could each Month.

A few months later, they write (Email & to my PO Box in Australia) advising that they would be selling the debt.

I CCA'd MBNA, and never got a response - I then sent them the usual Letter saying that they had timed out etc !! Still no response....until today !!

I got a letter from Charter Mercantile Agency in Queensland telling me I had to pay their Client - Link Financial AUD 30,000 within 7 days or a Solicitor will be contacted for further action.

I must stress that they only have my PO Box Number (which I gave to MBNA).

As you can imagine I am really concerened about this, and worry what may Happen.

I have heard all the stories about a UK debt not being Forceable over here, but if they have sold it to an overseas collection ageny what next !!

 

Any advice Guys - Please

Thanks

Nic

[dx100uk]

i would think any debt collection agency in the world is the same.

 

they have NO LEGAL POWERS!

 

ignore them.

 

dx

[Nicoblue]

OK Guys - A Tough One, and really Woried about this.

I had a debt ( Appx 15k)with MBNA in UK, and carried on making payments as per agreement, however when I fell on Harder times I had to reduce the payments, I advised MBNA, and they would not accept, but told me to keep paying what I could each Month.

A few months later, they write (Email & to my PO Box in Australia) advising that they would be selling the debt.

I CCA'd MBNA, and never got a response - I then sent them the usual Letter saying that they had timed out etc !! Still no response....until today !!

I got a letter from Charter Mercantile Agency in Queensland telling me I had to pay their Client - Link Financial AUD 30,000 within 7 days or a Solicitor will be contacted for further action.

I must stress that they only have my PO Box Number (which I gave to MBNA).

As you can imagine I am really concerened about this, and worry what may Happen.

I have heard all the stories about a UK debt not being Forceable over here, but if they have sold it to an overseas collection ageny what next !!

 

Any advice Guys - Please

Thanks

Nic

[jasmin2008]

They are most likely trying it on.

[I've got no money]

It doesn't change anything.

 

A debt can be assigned to anybody - it can be assigned to an Australian Company.

 

If, however, they want to pursue it they have to issue proceedings in England and Wales and are no different to any other creditor

[42man]

3 threads merged...try and stick to one thread if you can Nico, it means that posters can see your 'story' and comment on other comments made...

[Kraken1]

considering it concerns an Oz resident and an Oz DCA would that not mean that the jurisdicition would now be Oz but under English law?

 

Now that would be entertaining.

[I've got no money]

considering it concerns an Oz resident and an Oz DCA would that not mean that the jurisdicition would now be Oz but under English law?

 

Now that would be entertaining.

 

I'm not an expert in International Law but I'm pretty sure that as the contract was made in England and Wales and is governed by English Law that it would have to be litigated in England and Wales...

 

In fact I think that you'll find that English Law does not allow the case to be heard in Australia - see for example Regulation 9 of Unfair Terms in Consumer Contracts Regs 1999

[spamheed]

The agreement was taken out under UK law, irrespective of the nationality of the OP only a UK court can enforce the debt.

 

There are reciprical agreements which include debt collection within commonwealth countries, HOWEVER, there must be a CCJ applied to0 the debt at the time the debtor left the country.

 

Assuming that there was no such CCJ, then they haven't got a chance with this.

 

Since they also don't have any identifying information on you, other than a PO Box, it's not like they can follow up on their threats I wouldn't worry too much

[Kraken1]

i would have thought that there would need to be a clause in the contract stating that it was subject to the exclusive jurisdiction of E&W.

 

As far as I am aware you can be sued under English law anywhere in the world. International law is not my thing though so stand to be corrected.

 

UTCCR and UCTA - don't you need to show unfairness or detriment? If all the parties are in australia litigating in the UK would be unfair...

[I've got no money]

i would have thought that there would need to be a clause in the contract stating that it was subject to the exclusive jurisdiction of E&W.

 

As far as I am aware you can be sued under English law anywhere in the world. International law is not my thing though so stand to be corrected.

 

UTCCR and UCTA - don't you need to show unfairness or detriment? If all the parties are in australia litigating in the UK would be unfair...

 

I think you'd find that an Australian court would decline jurisdiction - Reg 9 of the Unfair Terms etc regs provides that "these regulations shall apply notwithstanding any contract term which applies or purports to apply the law of a non member state..."

 

It is a contract that was formed and performed under English Law - the correct forum has to England and Wales - in terms of UTCCR and UCTA - the issue of fairness relates to the contract term not the location of the court

[Pinky69]

I think you would need to find out what legal arrangements there are between Commonwealth countries. I think this is one for a half hour consultation with a solicitor in Australia.

[Kraken1]

but of course the utccr don't actually apply in Oz... the normal laws on jurisdiction would though.

 

See reg 4(2)b:

 

'These Regulations do not apply to contractual terms which reflect... the provisions or principles of international conventions to which the Member States or the Community are party'

 

I would also question how an oz company suing an oz resident in oz is 'contrary to the requirement of good faith [or] causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.'

 

there is also the issue of the effect of the utccr's - they mean that a term has no effect - so a clause saying you must be sued in a certain court, if unfair, would have no effect. If it has no effect then the consumer has the right to be sued in their own domicile.

 

Also, don't confuse law with jurisdiction - I think english law would apply but that this might be enforced by an oz court - law and jurisdiction are different things. Even if the regs were taken to apply, Reg 9 refers only to law, not jurisdiction. You also missed the end of the reg - 'These Regulations shall apply notwithstanding any contract term which applies or purports to apply the law of a non-Member State, if the contract has a close connection with the territory of the Member States.' With all the parties in Oz I think that it could be argued that the contract, whatever its initial form, now does not have a close connection to a member state, it has a closer connection to Oz; this is where the debt, consumer and creditor all went.

 

I still want to add the caveat that I might be wrong, I do know consumer law, but the issue here is the international dimension that I am unfamiliar with. I also know bugger all about oz law. So, I may be entirely wrong, but if I am I don't think it is because the utccr's.

[I've got no money]

but of course the utccr don't actually apply in Oz... the normal laws on jurisdiction would though.

 

See reg 4(2)b:

 

'These Regulations do not apply to contractual terms which reflect... the provisions or principles of international conventions to which the Member States or the Community are party'

 

I would also question how an oz company suing an oz resident in oz is 'contrary to the requirement of good faith [or] causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.'

 

there is also the issue of the effect of the utccr's - they mean that a term has no effect - so a clause saying you must be sued in a certain court, if unfair, would have no effect. If it has no effect then the consumer has the right to be sued in their own domicile.

 

Also, don't confuse law with jurisdiction - I think english law would apply but that this might be enforced by an oz court - law and jurisdiction are different things. Even if the regs were taken to apply, Reg 9 refers only to law, not jurisdiction. You also missed the end of the reg - 'These Regulations shall apply notwithstanding any contract term which applies or purports to apply the law of a non-Member State, if the contract has a close connection with the territory of the Member States.' With all the parties in Oz I think that it could be argued that the contract, whatever its initial form, now does not have a close connection to a member state, it has a closer connection to Oz; this is where the debt, consumer and creditor all went.

 

I still want to add the caveat that I might be wrong, I do know consumer law, but the issue here is the international dimension that I am unfamiliar with. I also know bugger all about oz law. So, I may be entirely wrong, but if I am I don't think it is because the utccr's.

 

I think with respect that you are entirely wrong - I deliberately didn't finish the quote from reg 9 because it talks of the "contract" not the parties - the contract was formed and performed in Britain - it is, with respect, absurd to suggest that an Austrailan Court would determine a matter of English Law - it is unfortunately over 20 years since I studied conflict of Laws which is why I wouldn't purport to be an expert however the more that this discussion continues the more certain I become that the correct forum would be England and Wales. The essence of regulation 9 is that you can't put a clause in the contract which makes the law of a non EU state relevant where the contract concerned was made in the member state. Don't forget that it is Law that determines jurisdiction.

 

I am pretty sure that if the position were reversed that it was an Australian contract and the parties relocated to England & Wales that the English Courts would certainly not adjudicate on Australian law

Edited May 15, 2009 by I've got no money

[Nicoblue]

Thanks to all replies, sorry for triple posting - Dont know what happened there !!

 

Just to let you know that Debt was never taken to UK Court nor was a ccj issued in UK ! - As I said earlier I was paying the agreed monthly amounts for nearly 2 years from Oz.

 

I really appreciate all your replies, as it certainly helps share the problem !!

 

So What shhould I actually do - Nothing at all or respond saying that I do not recognise having account with Link Financial etc !! ??

 

Thanks Again Guys

[spamheed]

The contract was and is subject to UK law, the CCA is a UK instrument and as such they cannot enforce such in a none UK legal system.

 

It is only if there is a pre existent CCJ that the debt can be enforced on foreign shores and even then, it's not the CCA that's being enforced, it's the CCJ.

 

NicoBlue they can do nothing to you, they can threaten and attempt enforcement but Oz courts would have no jurisdiction over this debt. As such I would be inclined to do nothing, it looks like a threatogram, until they start the process of taking you to court I would ignore them.

 

I don't know what consumer protection you have over there but if there is an organisation similar to CAB, then I would suggest for your own peace of mind and to gain a second opinion you should either contact them (if they exist), or as previously advised seek the advice of a well versed Oz attorney on the matter of jurisdiction. I would imagine it would be a fairly brief meeting

[tessisme]

The contract was and is subject to UK law, the CCA is a UK instrument and as such they cannot enforce such in a none UK legal system.

 

It is only if there is a pre existent CCJ that the debt can be enforced on foreign shores and even then, it's not the CCA that's being enforced, it's the CCJ.

 

NicoBlue they can do nothing to you, they can threaten and attempt enforcement but Oz courts would have no jurisdiction over this debt. As such I would be inclined to do nothing, it looks like a threatogram, until they start the process of taking you to court I would ignore them.

 

I don't know what consumer protection you have over there but if there is an organisation similar to CAB, then I would suggest for your own peace of mind and to gain a second opinion you should either contact them (if they exist), or as previously advised seek the advice of a well versed Oz attorney on the matter of jurisdiction. I would imagine it would be a fairly brief meeting

 

I thought a CCJ obtained in the UK was unenforcable in another country. From what I understand a debt can be assigned for collection but not enforced etc also the CCA if requested would have to be provided - thats the way I understood it. I will stand corrected if am wrong..

[Nicoblue]

I thought a CCJ obtained in the UK was unenforcable in another country. From what I understand a debt can be assigned for collection but not enforced etc also the CCA if requested would have to be provided - thats the way I understood it. I will stand corrected if am wrong..

 

For Clarity - There has been no CCJ issued in the UK, I did request CCA as mentioned earlier on the 9th February to MBNA - No Response - I then sent Account in Dispute Letter on 9th April. No resonse Again !!

 

I didnt even recieve notification that Link Financial had Bought or had the debt assigned to Them.

 

Do I re send CCA to Charter Mercantile in Oz and advise that Account in Dispute, or should I just do Nothing !!

 

As I said I only have a POBox Number here.

 

Thanks Again Guys

[cerberusalert]

Send a CCA to Charter Mercantile, if they want to collect an English debt they'll have to conform to English law, although they'll probably run a mile.

[I've got no money]

Send a CCA to Charter Mercantile, if they want to collect an English debt they'll have to conform to English law, although they'll probably run a mile.

 

I'd agree with that totally

[Kraken1]

it is, with respect, absurd to suggest that an Austrailan Court would determine a matter of English Law

I'm sorry, I have to disagree. Whilst it is probably unlikely in a consumer case, jurisdiction and law are different. One jurisdiction can apply yet another choice of law might. Look at the lockerbie trial for example, a swiss court heard the case under scots law. This happens all the time in tort where you are looking at the assessment of damages. It is quite prevalent in insurance, shipping and arbitration.

I'd also look to these cases which indicate that a court English court might refuse to here a claim when all the parties are based in Oz (note - jurisdiction cases generally, not specifically consumer related):

Ace v Zurich 2001

Du Pont v Agnew 1987

Piper Aircraft Co v Reyno 1981

Then you have Shashoua v Sharma where an english court had jurisdiction but the relvant law was indian (arbitration case).

Whilst not strictly relevant to this debate, there is also the rome convention which allows for 'a contract to which this Article applies shall... be governed by the law of the country in which the consumer has his habitual residence...'

So... my opinion remains:

English law applies

The consumer could be sued in Oz under English law

Due to the costs and complexities, this is extremely unlikely, although possible

Because all the parties are bases in Oz an English court might decline jurisdiction.

[dannyboy660]

You might like to take a look at this :

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/134645-being-chased-australia.html

 

 

and also consider Q168 of this Holy document

 

http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/118/118.pdf

 

before deciding what line to take on this.

 

The document is for EU consumption - but in the case of an unsecured credit contract signed under CCA'74, an Aussie colleague reliably informs me that they "have more chance of being pé&sèd on by the Pope".......

[dannyboy660]

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/134645-being-chased-australia.html

 

 

 

That thread has been chopped about a bit because if I remember rightly it was hijacked by a troll and had to be edited....but I think there's still plenty of info to be chewed over.

Edited May 15, 2009 by dannyboy660
spelling and grammar comparative to a 2 year old

[Nicoblue]

Ok Guys - A little more info on above Message - I actually contacted Consumer Credit Bureau (In Australia)and asked them about Transfer of a disputed & Unsecurred UK debt to Australia - Their response quite Alarming ??

 

Basically they told me YES the purchasers of the debt can Globally Chase it, however in Australia - Action has to be taken in the State that you reside !

 

Alternatively the Purchasers of the debt (presumably UK based) can get a Judgement in the UK and have it Transferred for Action in Australia and YES this could be enforced in the state you reside in.

 

Furthermore, if you have a PO Box, the court can issue a "substitution oder ??" - I have no clue what they meant by this - and once issued you have you then declare your full address details to the court for hearing. !!

 

I asked - How can they do this if the account is in dispute - surely they have to provide any such credit agreement or assignment notce - which both I have never recieved (After sending CCA request to MBNA - with No response at all !!

 

Response - well they have bought the debt for approx 15 cents in the dollar - call them and negotiate a settlement or payment plan before it goes to court !!

 

Confused to say the least !!

 

It would appear Link Financial have purchased and just appointed a Collection agent in Queensland to Chase up !!

 

Any Thoughts