M+S Money Card - passed to Lowell Financial - Notice of Assignment

[Valhalla]

Hello,

 

Perhaps someone can help me with a case I have going on with an M & S Money card?

 

My M & S file has been passed to Lowell Financial who wrote to me saying that they had purchased the alleged credit card debt from M & S

 

I though that any such sales had to be supported by a Notice of Assignment so I wrote back asking to see a copy of the Notice of Assignment, to which Lowell replied

 

"I wrote to inform you that your M & S account ref .... has been sold to Lowell Portfolio Ltd on 01/06/09, Lowell Financial Ltd has been appointed as the duly authorised collection agent for recovery of the outstanding balance."

 

Questions

 

Is it true that a N o A must be issued when a debt is sold to a third party?

If so what does a N o A look like ( I've never seen one despite having asked for one several times)

Does Lowell's answer above constitute a proper reply?

If they don't send the N o A where does that leave me and what can I / should I do next?

 

Hope someone can throw some light on this or tell me where to look

 

Thanks

 

Valhalla

[cerberusalert]

Moved to Debt Collection Forum.

[silverfox1961]

Have a look here:

 

Law of Property Act 1925 (c.20)

 

Pay attention to sections 136 and 196

 

As far as I'm aware, there are different formats to NOA's

 

Have you CCA'd the Leeds Losers or M&S

[gezwee]

I've always accepted that there are 2 types of assignment but correct me if I'm wrong.

 

Equitable assignment..... usual for DCA's, passes certain rights and duties to them from the OC and requires no formal NOA..... then again you can carry on ignoring a DCA as they'll need the OC to act in litigation anyway.

 

Statutory/absolute assignment....... this involves the complete discharge of and passing to a third party of the debt.

 

There is case law regarding NOA's and which party (assignor or asignee) should present to the debtor. The Law of property act states the following:

 

'Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—'

 

It does not identify if the notice should come from assignor or assignee although you would think it responsible for one party or the other to get it right and identify themselves as the creditor.

[Valhalla]

Thanks Gezwee, and Silverfox1961

From what you've said and what I've read seems to me that a NOA is a seperate document that have to be sent to the alleged debtor.

I would have imagined that there is a set format for an NOA , that it has to contain certain details and be set out in a certain way.

 

All I've had is a letter from The Leeds Losers ( nice one Silverfox) in which they wrote saying that they had purchased the debt. There was some other stuff in that letter and it just seems to me that this isn't a proper NOA at all.

 

Am I right in thinking this and if so can I just write back and say " This isn't a proper NOA and until and unless you send one, I don't want to deal with you" ?

Have a great holiday and thanks for your help

 

Valhalla

[Bazooka Boo]

Just fire this back at them, then ignore them, they, or rather, their computer, will generate random threatogrammes to be sent out until they get bored and pass it back to the OC or sell it on to another laughable outfit.

 

http://www.consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/573-general-debt-letter-if-you-know-nothing-of-the-debt

[Valhalla]

Thanks Bazooka Boo

Pretty good letter!

 

Is it still OK to send the letter even though I'm not querying the debt, just Lowell's authority to be collecting it on behalf of M & S ?

 

I want Lowells to provide concrete evidence that they are genuinely the owner of the debt, or get lost

 

Valhalla

[count orlok]

anybody can say that they have bought a debt. personally i do not entertain any dca untill i get a letter fromt he OC saying they want me to stop paying them. The DCA would not stop paying any of their bills and pay you instead would they? works both ways as i see it.

[gezwee]

Hi Valhalla

 

Sorry, remember less and less of anything learnt on these forums - guess its an age thing

 

Asked some advice on another thread and .........a genuine NOA proposing legal/absolute assignment must come from the assignor (the OC) and must be served by registered post. Anything less indicates equitable assignment only and its misleading for a DCA to advise the debt has been sold to them when only the collection rights and duties of a debt have.

 

To be honest I've never acknowledged a DCA and always referred to the OC, if a creditor ever becomes litigious they'll have to involve the OC anyway unless theres evidence of a correctly served NOA

 

Law of Property Act 1925 (c.20)

 

196 Regulations respecting notices

 

(1)Any notice required or authorised to be served or given by this Act shall be in writing.

 

 

(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

 

 

(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

 

 

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

 

(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

 

 

(6)This section does not apply to notices served in proceedings in the court

 

 

Gez

[lilly white]

well imho do not contact the dca in the future they will have to prove they sent the noa,

 

why do that for them

 

The Assignment of the Debt

 

 

19. If the Claimant was not zzzzzzzzzzzz Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

[Guest HeftyHippo]

Interesting. So although the property act doesn't say that ONLY registered (or recorded) delivery can be used, if anything less is used, then the NOA is invalid? Does that mean that the debt stays with the original creditor?

 

So, if the creditor sends a letter saying they have sold all rights and interest to a 3rd party, but doesn't send it recorded, then the 3rd party cannot take action, only the orig Creditor? So nothing has changed?

[palomino]

There is no legal requirement at all for a Notice of Assignment to be sent by any form of provable delivery.

 

However, if it isn't sent in such a way then how can they prove it was ever delivered?

 

As to the form of a Notice of Assignment - there isn't one. If they write and tell that they have sold the debt to someone else then that's sufficient. Of course they have to say who the buyer is and the date of the sale but that's about it.

 

As to the seller having to tell the debtor, the Act is pretty vague on this point. All that matters (in law anyway) is that the debtor is told.

[247orbital]

I know regarding a CCJ that just by the court mailing it is proof enough of receipt for them. Not even recorded or special delivery.

[Guest HeftyHippo]

Thanks palomino

 

I'd just like to say that sometimes, you want a NOA to be valid, regardless of how it has been sent. eg, the creditor issues a defective default notice and then sells the debt. In that case, you want to make sure that that the NOA is valid and everyone accepts and understands that the OC has no further interest in it (ie absolute rather than equitable).

[tedney]

subbing, thanks

[palomino]

I'd just like to say that sometimes, you want a NOA to be valid

 

I see your point.

 

Well, the buyer and seller both believe that it's valid. If you behave as though you believe it's valid then no-one is even going to think of questioning the validity.

[Guest HeftyHippo]

I see your point.

 

Well, the buyer and seller both believe that it's valid. If you behave as though you believe it's valid then no-one is even going to think of questioning the validity.

 

True. Until you put the point to them that their rescission of the agreement voided it, and then they go and realise that the NOA was invalid...... so the agreement wasn't ever terminated (although they all thought it was at the time), so nothings changed and you still owe the money.

 

Just because they're sloppy with the paperwork and the law doesn't mean we should let our guard down. It's in our interests to ensure that their sloppiness benefits us only.

[roncarr]

I have a debt with M&S Money which is being chased by HFO Services.

I can prove the Notice of Assignment was sent by HFO and not M&S. The envelope is postmarked with the same postmark as HFO letters. Also the letterhead used was not a genuine M&S Money letterhead but one made up by HFO. The letterhead contained none of the legal info that M&S should use. I wrote to M&S about this and they did not really care that HFO were sending out an NOA on an illegal letterhead so I sent a complaint about M&S Money and HFO Services to the Companies Investigation Branch. I also informed Surrey Police, Trading Standards and the Office of Fair Trading. Maybe I should have complained to the FSA as well?

[babybear39]

I have a debt with M&S Money which is being chased by HFO Services.

I can prove the Notice of Assignment was sent by HFO and not M&S. The envelope is postmarked with the same postmark as HFO letters. Also the letterhead used was not a genuine M&S Money letterhead but one made up by HFO. The letterhead contained none of the legal info that M&S should use. I wrote to M&S about this and they did not really care that HFO were sending out an NOA on an illegal letterhead so I sent a complaint about M&S Money and HFO Services to the Companies Investigation Branch. I also informed Surrey Police, Trading Standards and the Office of Fair Trading. Maybe I should have complained to the FSA as well?

 

This issue has been widely debated and the general opinion of the forum is that OCs give permission to DCAs to use their letterheads. DCA staff have confirmed this.

[gezwee]

Still needs to be served by hand of the assignor regardless of contractual terms betwixt OC and DCA.

 

Really depends on the individual and whether they want to accept 2nd hand copy or await assignor served notice.

[roncarr]

OC's might give permission for DCA's to use their letterheads but the letterheads have to be legal. A limited company has to have certain information on their letterhead by law and therefore for a DCA to send out a letterhead on behalf of the OC without that information is against the law. Also if the NOA is on an illegal letterhead then I would imagine the NOA would be invalid.

[citizenB]

Valhalla, you might want to have a look at the following thread.

 

Lowells apparently bulk purchased a few hundred Capone accounts. There could possibly be an error in the purchase/assignment so you will need to check your own letter very carefully.

 

http://www.consumeractiongroup.co.uk/forum/capital-one/226293-capital-one-group-fos-5.html#post2512526

 

Apparently they are under no obligation to let you know.. but if they do, it needs to be accurate.

[WA_Newman]

Hi,

 

Just a couple a questions on Notice of Assignment.

 

My understanding is that a NOA must be issued by the Original Creditor notifying the debtor that the assignment is absolute, the date of the assignment and who it has been assigned to. The OC does not have to send the letter directly to the debtor but can give the letter to the assignee who must give the letter to the original debtor. Is this correct?

 

Without the NOA from the OC, there is no assignment. Is this correct?

 

Does anyone have any Case Law precedents for NOA? I read the case notes above but didn't see the case it was from.

 

Thanks

[Valhalla]

Excellent point WA Newman and one I'd also like some clarity on if anyone can shed the light on this.

 

Also, in the absence of a NOA, does the DCA have any grounds on which to press for repayment?

 

Thanks

[MAGDA]

Hi,

 

Just a couple a questions on Notice of Assignment.

 

My understanding is that a NOA must be issued by the Original Creditor notifying the debtor that the assignment is absolute, the date of the assignment and who it has been assigned to. The OC does not have to send the letter directly to the debtor but can give the letter to the assignee who must give the letter to the original debtor. Is this correct?

 

Without the NOA from the OC, there is no assignment. Is this correct?

 

Does anyone have any Case Law precedents for NOA? I read the case notes above but didn't see the case it was from.

 

Thanks

 

Bit later replying, as only just come across this thread, but no, the NoA does not have to come from the Assignor, it can be issued by either the Assignor or the Assignee, and it does not have to state the date of Assignment, but if it does, it must be correct - if it isn't it can invalidate the Assignment.

 

Hope this helps if you still need this info.

 

Magda