My Debts & Various DCA's & Letters

[willtheywontthey]

what's poc?

 

by the way found this handy old thread - not sure if all information valid or up-to-date but shoud assist. Hoping somebody will dissect and put into layman's terms as that legl language just is too much for my brain.

 

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/123087-dlc-hillesden-assignment.html#post1274894

[cashins]

what's poc?

 

 

Particulars of Claim. It's what you get through the post when someone commences a court action against you.

 

David

[willtheywontthey]

that's odd - every time I copy the relevant thread it goes to a different one?!!!

 

will copy / paste for now what it says.

 

Mccuth:

 

Received 2 letters from Hillesden Securities Ltd T/A Direct Legal & Collections today, as follows (verbatim, including what you might construe as an attempt at grammar!):

 

 

Quote:

Dear {mcuth}

 

Our Clients: Hillesden Securities Ltd

Account number: xxxxxxxxxxxx

Balance outstanding: £xxxx.xx

 

Please accept this letter as notification that this agreement has been assigned to Hillesden Securities Ltd T/A Direct Legal & Collections. It is essential all future payments are made direct to Direct Legal & Collections.

 

You must let us have your immediate proposals for payment of the outstanding balance by calling 0870 7446482 within 48 hours.

 

Alternatively you can complete and return the insertion, headed "payment options" by return enclosing your first payment. A prepaid envelope has been provided for your convenience.

 

Payment proposals may be accepted or rejected at our discretion.

 

Yours sincerely

 

Debbie Bloxham

Team Leader

The other letter is from Sarah Revens, Team Leader - though both Debbie & Sarah appear to have the same "signature", LOL!

 

Now, this is in no way a notice of assignment, since it doesn't mention the original creditor *at all* (not by name, account number, anything), so I have no way of identifying who's making this claim

 

Anyway, since I've not had to deal with assignment yet, I wanted to take the advice of learned figures here What exactly is the creditor and/or buyer required to provide on assignment please?

 

TIA

 

 

 

Curlyben:

To be honest I wouldn't worry to much about this "assignment" as the term is seriously abused by DCA's.

 

Basically there's two types; Equitable and Absolute.

 

In Equitable the DCA has the rights to the debt, but the duties still reside with the OC. If any enforcement action is taken then it must be brought by the OC ONLY.

 

Absolute, as the name suggests, covers the complete account, so the rights and duties. This tends to be done under Law of Property 1925 s136.

In this case the DCA replaces the OC are the owner of the account and can bring enforcement action in their own name. This is a favourite of Cabbot, except they seem to get slightly confused in the operation of law.

 

Curlyben:

 

 

The only thing that would prove what type of assignment they have used would be the Deed of Assignment.

You are highly unlikely to get a copy of this as they contain sensitive commercial information and other peoples details as well.

 

I find the best way to find out what type of assignment they have used is simply to ask, admittedly they'll probably hide what they have done by simply saying LEGAL assignment.

 

pt2537 (site team):

 

20. Notice in writing.

 

 

 

In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person1 from whom the assignor would have been entitled to claim the debt or the chose or thing in action2. Where there are joint debtors and covenantors, notice to one who is a bankrupt is unnecessary3. The notice need not be formal4, and need not be written with the intention that it should perform the function of giving notice5; but it must be given even though the debtor cannot read6. The assignment only operates under the Act as from the date of the notice7, that is, the date on which it is received by or on behalf of the debtor8. If the debt is released or extinguished by payment or otherwise before notice is given, there is no transfer under the Act9.

It has been held that if the date of the assignment is wrongly stated the notice is ineffectual10, though if no date is given at all the notice may be good11. It may also be ineffectual if it does not state the amount of the debt correctly12.

The Act prescribes no limit of time within which the notice must be given13, and a notice given after the death of the assignor14, or after the death of the assignee15, is effectual.

The Act does not prescribe that the notice must be given by any particular person16. Thus it may be given by the personal representatives of a deceased assignee, even though no notice has been given by him or by the original or any intermediate assignee17.

In the case of a company, notice to the manager at the works, though not communicated by him to the head office, may be sufficient18.

It is thought that where there have been two assignments of the same debt, of both of which notice has been given to the debtor, but the assignee under the second assignment, without having notice of the first, gave notice to the debtor of his assignment before notice was given of the first assignment, he will have priority19.

If a debtor has given a negotiable instrument, for example a cheque, in payment of the debt, a subsequent notice that the debt has been assigned may be disregarded by the debtor even if the creditor still holds the cheque20.

 

 

 

 

 

 

 

1 Amalgamated General Finance Co Ltd v CE Golding & Co Ltd [1964] 2 Lloyd's Rep 163 (no legal assignment because no notice to underwriters); Shaw v Applegate [1978] 1 All ER 123, [1977] 1 WLR 970, CA (equitable assignment of benefit of negative covenant became legal when notice given to covenantor). It seems that notice should be served on every person who would be a necessary party to a claim on the debt: see Josselson v Borst [1938] 1 KB 723 at 736, [1937] 3 All ER 722 at 727–728, CA, per Greer LJ, and at 740 and 732 per Slessor LJ. Notice should, accordingly, be given to all trustees: see para 53 post. In relation to a cause of action in tort see also Perry v Tendring District Council [1985] 1 EGLR 260; RL Polk & Co (Great Britain) Ltd v Edward Hill & Partners [1988] 1 EGLR 142.

2 Law of Property Act 1925 s 136(1). An assignment will be good in equity as between assignor and assignee without notice: Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 ChD 128, CA. See further para 42 post. The suspensory character of the proviso in Gatoil Anstalt v Omennial Ltd [1980] 2 Lloyd's Rep 489 meant that the notice of assignment did not satisfy the requirements of the Law of Property Act 1925 s 136 (as amended).

3 Insolvency Act 1986 s 345(4); Josselson v Borst [1938] 1 KB 723, [1937] 3 All ER 722, CA.

4 Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177.

5 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

6 Hockley and Papworth v Goldstein (1920) 90 LJKB 111 (where the debtor's inability to read was well known to all the parties, and clear oral notice was given but was ineffective).

7 Law of Property Act 1925 s 136(1).

8 Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA); and see para 21 post.

9 Lee v Magrath (1882) 10 LR Ir 313 at 319, 326, CA (where the transferor appointed the debtor her executor); Re Westerton, Public Trustee v Gray [1919] 2 Ch 104 (payment of interest to assignor of fund before notice of assignment of fund). Cf Jenkins v Jenkins [1928] 2 KB 501.

10 Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839; WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA. It is not so in the case of an equitable assignment: Whittingstall v King (1882) 46 LT 520.

11 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

12 WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA, obiter per Denning LJ.

13 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.

14 Walker v Bradford Old Bank (1884) 12 QBD 511; Re Westerton, Public Trustee v Gray [1919] 2 Ch 104.

15 Bateman v Hunt [1904] 2 KB 530, CA.

16 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.

17 Bateman v Hunt [1904] 2 KB 530, CA (where the notice was given by the executor of a sub-assignee).

18 William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, HL (a decision on an equitable assignment).

19 See Marchant v Morton, Down & Co [1901] 2 KB 829.

20 Bence v Shearman [1898] 2 Ch 582, CA.

 

(links above do not work - ignore he said)

 

Mccuth:

 

Paul

 

Thanks for the info - so there's nothing governing what should be included - just that "a notice" must be sent?

 

Fantasy charges:

 

riginally Posted by Richard Spud COPY OF DEED OF ASSIGNMENT OF A DEBT

 

It may help if I suggest that while there is no obligation for a Creditor Assignee to provide a copy of a DOA when a request is made by a Debtor under ss.77,78 of the CCA 1974, there is no restriction on requesting the voluntary production in support of a claim of assignment. However, I doubt if a Creditor Assignee (or indeed the Assignor) would provide this information as the DOA would undoubtedly contain the consideration (the sum) paid by the Assignee. Nevertheless, I submit that if proceedings have been instigated in the County Court by the Creditor Assignee, then I believe the Defendant Debtor could serve on the Claimant a Part 18 Request For Clarification And Further Information (under the Civil Procedure Rules) referring to the DOA and enquiring if it is to be pleaded. I understand that a response is required to by way of a Statement Of Truth and any copy documents on which the Claimant intends to rely should be annexed thereto –the original documents to be produced at a subsequent hearing for inspection by the Court and the Defendant.

 

I assume that it is known that for a legal assignment (as opposed to an equitable assignment) of a debt to have effect so that the Assignee can sue in their/its own name, the requirements of the Law of Property Act 1925 need to be fulfilled and that the assignment is not effective until the Debtor has received a Notice of Assignment – not the date when the Notice of Assignment was posted. Consequently, should a Creditor Assignee be unable to provide evidence of service and the Defendant has not received a Notice of Assignment when proceedings have already been brought in the County Court then, I suggest, it might be reasonable to file an application for the Claim should be struck out on the grounds that Assignment has not been pleaded and that proceedings cannot be brought prior to the service of a Notice of Assignment.

 

Authorities to check:

 

Law of Property Act 1925 s.136

 

Holt v Heatherfield Trust Ltd [1942] 2 KB 1; Holwell Securities Ltd v Hughes [1973] 2 All ER 476 [1973] 1 WLR 757

 

Hope this helps.

 

A Well Wisher.

 

[make them aktiv runners]

Hi everyone:)

 

I have a quick question please if you don't mind me butting in and apologies if I've missed this point somewhere!

 

On a NOA which is the relevant date for assignment -

 

a) the date the account was assigned?

 

b) the date the account became live with the DCA?

 

We have a DN with a remedy date of 23/2/09 and a NOA (sent regular post on 3/3/09) which states that the account was assigned on 18/2/09 and became live on 25/2/09 - ie, the assignment date is 5 days before the DN remedy date, but the account became live with the DCA 2 days after the DN remedy date.

 

Many thanks and apologies for the hijack!

 

Regards,

 

Landy x

 

Assignment took place in Equity on 18.2.09. At any time prior to receiving NOA you could have made payment to OC. Full payment would discharge the debt, partial payment reduce it. Had you paid anything the Equitable assignment would merely protect the assignees interests in the debt, ie they could sue assignor for any payments received by them for it but not you.

 

Assignment became absolute when you received NOA. This merely moves the right to receive and right to sue from assignor to assignee (DCA).

 

Assuming the dates mentioned are also contained in Deed of Assignment or sale contract between assignor & assignee, NOA is correctly served as far as dates are concerned.

 

There is nothing stopping assignment taking place during a DN remedy period. It would muddy the waters only if DCA began contacting you before DN expiry date. DN expiry date is 2 days later than yours due to them allowing for postage inwards, eg if you posted a cheque.

[make them aktiv runners]

Now we have got some NOA specialist jumping in, a question.

 

Not an expert myself. Answers are from what I have found on forum and personal research.

 

I am aware that if a DCA, having bought a debt, then issues a POC before sending an NOA, (or can't prove they did), this can derail the action.

 

What I don't now is, if that is the case, is there anything to stop them withdrawing that action, serving a NOA and then starting another action?

 

David

 

As mentioned after your replies & before this reply, yes people have successfully forced claims to cease on the basis of no NOA.

 

Reading some of the legal cases on here, it appears judges are more inclined to let the cases pursue when a NOA first appears as part of ongoing court proceedings.

 

Judges have the right idea in principle as there is nothing stopping a creditor from ceasing action, serving notice of assignment followed by commencing new court proceedings.

 

The key to not objecting to judges being unfair is not so much trying to force a case to terminate and recommence, it is pushing for for all the other sides costs to date to be cancelled in any cost claim against you if you were to lose.

[vint1954]

Hi Vint and apologies to willtheywontthey for this hijack of their thread:)

 

Thank you for your comments. To answer the points you raised -

 

The DN was dated 6/2/09 (received 10/2/09 but envelope not kept back then unfortunately)

 

The remedy date for the DN was 23/2/09

 

The DN falls on its own. The 6th was a Friday, so service would be deemed on the 10th, even if sent first class. This is faulty.

 

Then we received an envelope containing what appears to be a NOA (I believe). The actual contents of the envelope were 2 letters both dated 3/3/09 -

 

This needs to be a clear NOA, absolute, and has clearly been served during the default remedy period.

 

1) First one from the OC 'please accept this letter as confirmation that your outstanding balance has been assigned to......'

 

This is the notice where dates are important.

 

2) Second one from the DCA 'please accept this letter as official notification that **** has purchased your account and all rights, interests and claims in respect of all amounts outstanding on this account as of 18th February 2009'

 

NOA is dated 3/03/09

 

This second letter continues 'your account became active with **** on 25th February 2009.'

 

I would think that this date should have been in the NOA, not just being advised to you by new creditor. This date could be unimportant.

 

We have the envelope that these two letters came in and it was normal mail, not registered - 2nd class I believe as there is a large '2' on the envelope.

 

What I'm trying to establish is whether the fact that the account was assigned before the DN remedy date is the important factor, or if it is the date it became active that counts?

 

Yes it was assigned within the DN remedy period. I would think that relevant dates should be within the NOA, from the OC, not an introduction letter from DCA.

 

Most other NOAs I have seen seem to only mention one date - the assignment date, not the date the account became active as well, so I had assumed they were one and the same = ours seems to disprove this.

 

Assignment date is the one to go by from the OC. The rest could be trying to cover mistakes.

 

Once again apologies for asking these questions here, but the answers may be of interest to the OP and anyone else in a similar situation;)

 

Regards,

 

Landy x

Vint

[vint1954]

Now we have got some NOA specialist jumping in, a question.

 

I am aware that if a DCA, having bought a debt, then issues a POC before sending an NOA, (or can't prove they did), this can derail the action.

 

What I don't now is, if that is the case, is there anything to stop them withdrawing that action, serving a NOA and then starting another action?

 

David

The NOA is notification of a deed between the OC and new creditor. Can't imagine that they can issue a second one. The other point to bear in mind is that they should send these registered post, to enable them to prove service. It is not deemed service by popping in the normal post or giving it to his mum to drop off:)

[cashins]

It is not deemed service by popping in the normal post or giving it to his mum to drop off:-)

 

:lol:

 

Thanks

 

David

[Undercover-Elsa]

LOL that's the one..they're desperate for brains.

Maybe they'll go one step further and put a Charging Order on our whole bodies, only collectable after we die (except by order of a court if we fail to donate organs on time..)

[willtheywontthey]

and you've mentioned to the DCA to 'go forth and .... etc' then what exactly can you do?

 

1. phone police - they will say it is a civil case?

 

2. can you ask for ID, take it when offered and then close door and not give ID back? (legally?) Is this theft?

 

3. I had heard soomething about throwing water etc - I guess that is not allowwed?

 

4. What if DCA breaks DPA and mentioning loudly 'I is ere to collect that money which you owes us' so neighbours hea... is he best that can be expected is a complaint to ICO who say 'oops' and that is it.. embarassment - whole street finds out and that is that???? embarassment could be for decades?

 

5. what's the ultimate effective and clearly legal deterrent to a doorstep DCA visitor?

[debt4get]

they very rarely turn up..i did have one once..just told him to go away and that i had no intention of discussing anything..he got into his car and left..remember they have no power..likewise you do not have to be rude just politely say go away i do not wish to talk to you.. likelyhood of his shouting your debt in street is virtually nil

[dx100uk]

he is an uninvited guest and is trespassing.

matters not their reason to be there.

when asked to leave your property, they must.

else call the police,

What can be done?

 

It depends on the nature of the trespass; a Sunday walker for example who happens across your land is not a prime candidate for hurling civil rights law at. However if an individual chooses to make use of your land on a regular basis, either by passing and re-passing, parking a vehicle or trailer, or any such similar repeated breech then the courts can provide injunctive relief.

 

Injunctive relief is an order made by the courts against such a trespasser limiting them and their property, where relevant, from repeating such trespass. Once such an injunction has been issued, the trespass becomes a criminal offence (contempt of court) and is subject to fines and in extreme situations, custodial sentencing.

When should I do something about a trespass?

Land Registry Title Deeds

Exceptions to the Rule

Injunctive Relief

What can be done?

 

It depends on the nature of the trespass; a Sunday walker for example who happens across your land is not a prime candidate for hurling civil rights law at. However if an individual chooses to make use of your land on a regular basis, either by passing and re-passing, parking a vehicle or trailer, or any such similar repeated breech then the courts can provide injunctive relief.

 

Injunctive relief is an order made by the courts against such a trespasser limiting them and their property, where relevant, from repeating such trespass. Once such an injunction has been issued, the trespass becomes a criminal offence (contempt of court) and is subject to fines and in extreme situations, custodial sentencing.

 

dx

[pedross]

Several options but not the above.

 

1. Don't open the door

2. Fit a chain to the door so that it only opens inches and don't answer any questions or hand over any ID

3. Print off the doorstep caller letter from the letters library and hand it over.

4. Shut the door and watch the telly

5. Note the above advice

 

Thats if you ever get one call which is unusual.

 

Pedross

[mr.ton]

Just say to the police operator that the person is shouting racist or homophobic abuse outside your house, they will then get there in a flash

[gezwee]

I suppose we should remember that not everbody faced with a numpty knocking the door is 20stone of beer and kebabs (yeah yeah, going on a diet soon, promise) and can scare off even the most obtuse of the so-called doorstep collecters with an icy glare........ I don't have one (a doorstep that is), so I have not a scooby what they think they'll be collecting at our house

 

There are a lot of scared people out there who are unaware of their rights; young mums struggling to feed the littluns, pensioners suddenly seeing their life savings dwindle etc.

 

The more new threads that are posted on this subject the higher the ranking on google and other search engines the more aware people become.

 

Speaking personally, I have only ever had one visit and I almost felt sorry for him. Looked like he was just out of Uni trying to earn a crust. Politely asked him to leave and he scuttled off back to his car and drove off, all over in 20 seconds with no drama at all.

 

Gez

[diddydicky]

As has been said, 95% of threats of a personal visit are just that,

 

In the case of the remaining ones that actually do visit- a lot of hype exists- these are not bailiffs and alot depends on your own nature and confidence levels.

 

 

the ideal solution and sure to take the wind out of his/her sails , especially if you have other family members or friends (who you do not mind knowing your business) is to invite them in for a cuppa! tell them that you can talk about anything they like but not the alleged debt as you do that only in writing after you have taken advice .

 

tell them that you will gladly listen to and write down what they have to say but will not respond.

 

If you have a means of covertly recording the conversation all the better

 

There is no reason of course to invite or let them in to your house, but on the other hand there is nothing to fear from them calling at your house or entering if invited.

 

they cannot take anything, they cannot levy on anything, it doesn't matter a toss if they see your 180 inch plasma TV or your news shiny rolls royce in the attached garage,

 

in short, unless you are ultra nervous , it is a complete non event and really can be beneficial to you when you see just how powerless they are in person.

 

The vast majority of the people employed by these companies are normal sane and responsible people just doing a job.

 

they are often local and have no desire to be confrontational or spoken to by the police.

 

just my advice

[willtheywontthey]

Am I right to assume DCAs will be trying some dodgy manouvering during any strike action by Royal Mail and what should we be prepared for?

[Linus]

Nice point, they will post there SD and threats while the strike is on so you get them way to late and think they will cause panic, even if they do its a nice bit of defence that they posted while strike was on, knowing full well you would not receive in time.

[accesspwd]

Linus is right, because its known the postal strike is on it does help with the defence, the industry i work in is similar if our businesses dont pay up and it could be due to postal strikes we have to allow more time

 

p.s no im not a DCA *shivver* lol

[2Grumpy]

But no doubt banks will take the opportunity to make late payment charges

[postggj]

its my understanding the action will be a rolling strike

 

not all out

 

mind you, the post is so late now due to staff shortage, prob make no difference to the delievery time

[accesspwd]

yeah my post used to arrive 7-8 in the morning, these days im getting it midday

[ODC]

We will probably notice an increase in telephone calls from the threat centres

[DonkeyB]

Some DCAs - I speak from experience - also lodge claims just before Christmas, say 18th-19th December, knowing they'll get caught in the seasonal rush, and you might also be away from home. Devious swine.

[ODC]

CRAPquest did that last Christmas in Northern Ireland with a load of duff SDs which of course they never followed up on. A cynic might say that they wanted to ruin peoples Christmas and knowing that most solicitors offices are closed for a week that people would panic and phone their telephone threat monkeys at the Threat Centre.

 

Looks like they forgot about T'Internet and CAG