Default Notice & Notice of Assignment Advice Please

[bonzo697]

Advice needed please.

I sent a SAR to an OC last year. When it was returned there was no credit agreement, no Default Notice and no Notice of Assignment to the original DCA.

Since them it's been passed to another DCA after the original one failed to comply with my CCA request.

My question is should this information have been supplied by the OC when I made the SAR and should I receive a new NOA each time the account is sold on?

Also how strong is their case without them?

I believe that the OC still has Absolute Assignment as both DCAs have referred to "their client" in their letters.

[bonzo697]

Can anyone help with these questions please, as I'm expecting to receive an SD soon and would like to start putting my defence together.

[vint1954]

Has the debt been sold to DCA or are they just collecting on behalf of OC.

 

Did you recieve a Termination or Default notice.

[PGH7447]

and what is the debt, this will dictate whether there is an agreement to be had

[bonzo697]

Has the debt been sold to DCA or are they just collecting on behalf of OC.

 

Did you recieve a Termination or Default notice.

I didn't receive any notice of assignment with the SAR paperwork sent through, so I'm assuming it's still owned by the OC. The account dates back around 10 years but has been in dispute for about nine months

[bonzo697]

and what is the debt, this will dictate whether there is an agreement to be had

The account relates to a credit card

[babybear39]

Unless the account is under seal and you haven't made payment or written acknowledgement for more than 6 years then it's statute barred.

 

Send them this, letter 2 from here:

 

The Consumer Forums - Debt collectors

 

Amend to suit, do not sign print your name, send recorded keeping a copy with your postal receipt.

[bonzo697]

Unless the account is under seal and you haven't made payment or written acknowledgement for more than 6 years then it's statute barred.

 

Send them this, letter 2 from here:

 

The Consumer Forums - Debt collectors

 

Amend to suit, do not sign print your name, send recorded keeping a copy with your postal receipt.

Hi. No it's not statue barred

[vint1954]

Unless the account is under seal and you haven't made payment or written acknowledgement for more than 6 years then it's statute barred.

 

Send them this, letter 2 from here:

 

The Consumer Forums - Debt collectors

 

Amend to suit, do not sign print your name, send recorded keeping a copy with your postal receipt.

 

Bonzo,

 

Is it 10 years since you opened the account, or 10 years since you have made a payment on the account.

 

Vint

[silverfox1961]

Hi,

Before an account can be terminated, a default has to be issued. So long as it has been sent to the last known address of the debtor and not returned to them it will be deemed to have been served. If you moved and didn't tell them, that could be what happened.

 

When a notice of assignment is issued when a DCA buys a debt from the original creditor, you need to be informed by NOA and that NOA should be sent by recorded delivery as required by the Law of Property Act 1925 s196(4) If they sent it any other way, how can they prove you got it?

 

As they haven't sent you these important documents, you should give them the opportunity to resolve this. If they fail, report them to the information commissioner and if they don't respond to your next letter, take them to court

[I've got no money]

Are you sure that it has actually been assigned - the DCA may have been acting on behalf of the original creditor?

 

Why do you think that its' been assigned.

 

Don't forget that a Notice of Assignment can simply be a letter - there is no formal requirement for the content of an NoA. It is, however, important that unless the letter comes via registered post/recorded delivery or is hand delivered that you should not acknowledge receipt

[vint1954]

You could try the letter below, copy to the latest DCA.

 

Dear Sir or Madam,

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On xxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

Please note you may also consider this letter as a further statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

DO NOT IGNORE THIS LETTER and please confirm that you have complied with my request under section 10 of the Data Protection Act.

 

I trust this out lines the situation

 

Yours faithfully

Also c.c. the DCA

[vint1954]

Hi,

Before an account can be terminated, a default has to be issued. So long as it has been sent to the last known address of the debtor and not returned to them it will be deemed to have been served. If you moved and didn't tell them, that could be what happened.

 

When a notice of assignment is issued when a DCA buys a debt from the original creditor, you need to be informed by NOA and that NOA should be sent by recorded delivery as required by the Law of Property Act 1925 s196(4) If they sent it any other way, how can they prove you got it?

 

As they haven't sent you these important documents, you should give them the opportunity to resolve this. If they fail, report them to the information commissioner and if they don't respond to your next letter, take them to court

 

Hi Silverfox,

 

It appears that the DCA's are collecting on behalf of the OC. ( I Think )

 

Vint

[bonzo697]

Thanks for your replies. I thought that if a DCA was collecting on behalf of the OC that they had equitable assignment meaning they are acting on the OC's behalf but don't actually own the debt, so the OC would retain absolute assignment.

Also the OC should notify a creditor of any change of assignment?

I've never had any NOA. The second DCA only emerged about a month ago.

If I did receive a default notice it would have been several years ago.

 

If I made a SAR I assume that copies of of any such notice and a copy of any default notice issued would have to be included with the information supplied by the OC?

[bonzo697]

You could try the letter below, copy to the latest DCA.

 

Dear Sir or Madam,

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On xxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

Please note you may also consider this letter as a further statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

DO NOT IGNORE THIS LETTER and please confirm that you have complied with my request under section 10 of the Data Protection Act.

 

I trust this out lines the situation

 

Yours faithfully

 

Also c.c. the DCA

Thanks for this. I have CCAd both the original DCA and SARd the OC. I have also sent a FOS complaint letter and CCA request to the new DCA.

Never had anything but an application form but now they are threatening an SD. I just wanted to be clear on the grounds I can have it set aside on.