Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

[hunni2006]

ok,

so what happens when the 'debt purchaser' issues proceedings for a credit card debt without being joined in action by the OC?

is there a relevant section of law that states that they have to be joined with the OC, or that they cannot persue proceedings?

[buzby]

The CC company can treat the debt as a commodity and sell it on. Once this happens, the involvement of the original creditor is moot - they will in fact have been paid an amount to settle the balance and will have no further interest in it.

 

Where you have the power is whether your original agreement stated they had the right to sell on to a third party. If they did not - then you can safely ignore the claim, and if it goes to court, defend it on the basis that you neither agreed nor acknowledged the thebt to the claimant, ans as such are under no obligation to pay.

[hunni2006]

The original agreement included the clause:-

“We may transfer our rights and benefits and our obligations under this agreement at any time without telling you first provided that this does not detrimentally effect your rights and obligations under the agreement”

but if they have sold it on to a debt purchaser surely that affects my rights....?

Edited December 15, 2010 by hunni2006
can't spell

[buzby]

How are you disadvantaged? The swapping of one creditor for another could be argued to be not a major change. Where there would be a detriment is if such transfer increased your debt unreasonably then you have a good case to reject it. But if they were simply seeking the same amount and attempting to make you pay up, then I wouldn't see a court invalidating the transfer.

[hunni2006]

well for a start, It's not swapping one creditor for another.... its swapping a creditor for a debt purchaser who claim to have transferred the rights but not the responsibilities.

secondly, if the debt was still with the original creditor they would need to issue a default notice before taking action, if the default was rectified then the line of credit would be restored and things would go on as before.

In this case, no default or termination was issued by the OC, the debt was sold without notification to this 'debt purchaser' who does not acknowledge any obligations under CCA, so as a debtor, I am being given no oppertunity to rectify the situation.... therefore it must surely be detrimental.

 

tbh though, I am just trying to clarify the legalities of the position.... can a debt purchaser who claim not to be the creditor issue proceedings without the original creditor?

Edited December 15, 2010 by hunni2006
added a bit

[sillygirl1]

If they have the rights and not the responsibilities they CANNOT enforce the alleged debt through the courts. It is that simple. If they threaten court report them to the OFT and Trading Standards.

 

What has happened here is the alleged debt has been sold and the new owner theoretically can now only colllect the arrears element and not the debt, by buying the debt the balance has been written off. Only the arears element can be pursued by them via court, not the whole debt.

[buzby]

Before the transfer they would have terminated the operation of he account, or restricted it so that the only way forward would be to pay off the debt and move on. I know of no situation since 1990s where an account could be derestricted and continue as before.

 

Therefore it would be up to the court to decide whether the was detrimental, and this could not be guaranteed!

[pt2537]

well for a start, It's not swapping one creditor for another.... its swapping a creditor for a debt purchaser who claim to have transferred the rights but not the responsibilities.

secondly, if the debt was still with the original creditor they would need to issue a default notice before taking action, if the default was rectified then the line of credit would be restored and things would go on as before.

In this case, no default or termination was issued by the OC, the debt was sold without notification to this 'debt purchaser' who does not acknowledge any obligations under CCA, so as a debtor, I am being given no oppertunity to rectify the situation.... therefore it must surely be detrimental.

 

tbh though, I am just trying to clarify the legalities of the position.... can a debt purchaser who claim not to be the creditor issue proceedings without the original creditor?

If they are assignees under a Legal assignment, then they can bring proceedings in their own name, and if the assignment is not legal then they would rely on equity, they may be required by the Court to join the original creditor to proceedings.

 

I do not see that there is any requirement to serve a default notice if the contract is enduring when it is transfered to the new company, it would be absurd if this were the case, such as in the case of Monument when it sold its accounts to Barclays, did they default all the customers before they assigned the accounts? it is very much the same scenario,

 

Also a creditor can restrict credit without the need for a default, they can set your credit limit to 0 any time they choose

 

 

Also they dont need a default notice to seek to recover the arrears , this is a point often missed by people who bang on about default notices, just because there is no default notice they can still sue for outstanding arrears

 

So, to summarise, each case turns on its own facts. It depends on what basis they say they are not responsible under the CCA. This is an argument often run by Cabot, however, the OFT have made it very clear that they view the Creditor as the party who the rights have been transferred to. That seems entirely right as the 1974 Act states that you cannot contract out of the act.There is also the Crutchley vs Go Debt case, which seems to support this view.