Stop dca's harassment of you and your household in its tracks - for good!!!

[The Mould]

You are being harassed week in week out be some DCA, why is this? The answer is because you may not know your full rights and all DCA's take serious unfair advantage of that fact.

 

So How can you bring this harassment to an end and enjoy the privacy and comfort and security of your household again.

 

Use - Contracts (Rights of Third Parties) Act 1999 to your full advantage and bring an instant end to these wild horses and their stampede that is crushing and ruining your family's life.

 

For instance, did you know that a third party (the dca) must be expressly named on the contract/agreement between you and the creditor inorder for them (the dca) to be entitled in law to enforce a contractural term of the said agreement, if the dca is not expressly named on the contract he has no right under any act to be contacting you and demanding a payment.

 

Also, if the dca is not expressly named on the contract he has no right to commence litigation against you, nor does any Solicitor that he might instruct, iQor instructing Incasso is one senario that is unlawful if iQor are not expressly named on the contract.

 

So write a short polite but very firm letter to these dca's and refer them to the above act, state to them that if they do not discontinue in their pursuance of this course of conduct within 7 days of receipt of your letter, then you will make an Application to your local County Court under the Protection From Harassment Act 1997 requesting that the Court grants an injunction against them to stop contacting you.

 

Also, state in your letter that you will not accept them placing this account/contract on hold for any period of time and that you will only communicate/correspond with the creditor their client in any matter relevant to the contract/agreement.

 

I advise you all to look up the above-mentioned act and then write your own personal letters to the dca who has no right to be contacting you in relation to any contract/agreement that exist between you and their client.

 

Post up here your stories on this subject and what the dca's response is to your letters.

 

Stop paying the DCA's, stop speaking to them, stop allowing them to trample all over you and your household.

 

Stand up and fight for and use your full rights against these very nasty organizations.

 

I hope this will help you all.

 

Kind Regards

 

The Mould

 

Part of a crusade for Justice

[alfwithhair]

But what if the DCA has purchased the debt?

They are then the legal owners.

Do they have no right to contact you either?

[rameses_qc]

Sorry, but this is wrong. You cannot use this Act for this purpose. I think the poster has misinterpreted the Law as it stands S1 (1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—(a)the contract expressly provides that he may, Most consumer contracts expressly provide that the debt can be assigned or given to a 3rd party to "chase"

[sameagle]

You might find that getting an injunction could be a lot more costly than you think, and possibly a lot more than paying the debt.

 

I remember standing at a bar, in the company of my solicitor about twenty years ago, and somebody made the "Slap an injunction on 'em" remark.

 

Solicitor said, "Certainly you might, if the Courts agree, and if you have about five thousand quid to spare".

 

Perhaps it's become easier, and cheaper, in the intervening years?

 

Sam

[The Mould]

I am fully aware of assignment of a debt/contract, legal or equitable.

 

This post is referring to the creditors who pass the debtors account/debt details around to external agents - the DCA a third party, the creditor in these such cases still own the contract/debt.

 

The third party must be expressly named on the contract (s3 of the said act), if he is not, then he (dca) has no rights to be acting in such manner against the debtor.

 

I have not mis-interpreted the said act, rather the posters here so far do not understand the said act.

 

Even if the dca was expressly named on the contract that was still owned by the creditor, the dca has no right to litigation only a right to arbitration.

 

Assignment of a contract/debt is an entirely different subject, in the case of an equitable assignment the third party can bring an action in his own name, but the third party cannot obtain final Judgment in his own name.

 

In the case of a legal assignment of the contract/debt, the third party owns title thereof and can sue and obtain Judgment in his own name, in these circumstances the third party has the same rights as if he was the original party to the contract.

 

This post is in relation to situations where there is or has been no assignment, the creditor has passed the debtor's details around to the dca's but the dca's are not expressly named on the contract, therefore the dca has No right whatsoever to be making his demands for payment or stating legal action may take place if the debtor does not pay him.

 

Kind Regards

 

The Mould

[rameses_qc]

No you're interpreting it wrongly. Can you point me towards any caselaw that backs up your thinking?You are correct, however, in thinking that DCAs cannot bring an action on their own, they have no locus standi. They are not privy to the contract. Everyone on this forum is aware that DCAs cannot initiate Court action, or any other kind of enforcement action; however, it certainly does not preclude a creditor employing a debt collection agent to try and negotiate payment. The creditor has every right to do this, whether it's specifically in the contract or notYou can't use this legislation to stop a DCA trying to get you to pay.

[harrassed senior]

A slight deviation here, but relevant nevertheless.

 

New style Equifax Credit Reports (at least in my case) now report the DCA as the debt provider ie. Credit Card from Cabot. How does this affect ownership and therefore right to issue Court proceedings?

[rameses_qc]

A slight deviation here, but relevant nevertheless.

 

New style Equifax Credit Reports (at least in my case) now report the DCA as the debt provider ie. Credit Card from Cabot. How does this affect ownership and therefore right to issue Court proceedings?

 

This should only happen if the 'company' has bought the debt. DCAs should NOT be reporting to CRAs Because it's Crapbot, I would imagine they have bought it

[harrassed senior]

Many thanks but my whole CRA report is worded that way, each file is headed that way by whichever DCA is chasing at the moment.

[rameses_qc]

Well I think that this would be cause for complaint. DCAs shouldn't update the files, because they should only have enough data to enable them to chase the debt (which really means name address amount owed and tel number)

[PGH7447]

subbing

[The Mould]

Harrassed senior, I would say that you have some investigating to do in relation to your accounts/agreements/contracts in order to determine whether they have been sold/assigned.

 

If you have a copy of any of your agreements/contracts then I would also advise you to check the terms thereof and see if any of those terms purports to confer a benefit on a third party and that the third party is expressly identified in the contract by name, as a member of a class or as answering a particular description.

 

The Courts view contracts as private arrangements, a third party cannot interfere in that contract, or enforce that contract, as it is "none of their business". It has long been established in law that, no stranger to the contract can take advantage of a contact.

 

In order for a third party to hold a right to interfere in a contract that it was not a party to, the contract requires novation or assignment, or the contract will contain a term that expressly provides that he (the third party) may do so, or the term will purport to confer a benefit on him and, he (the third party) must be expressly identified in the contract.

 

Many, many cases on this subject, rameses, I am certain that you have the ability to do your own research/study, however, here is a recent case for you.

 

Avraamides and another v Colwill and another [2006] EWCA Civ 1533.

 

If the DCA is not expressly indentified in the contract (if there is a term in the contract that expressly provides he can enforce or a term in the contract purports to confer a benefit on him), the DCA is a third party and therefore a stranger who has no right to take advantage of the contract, it is none of his business.

 

Kind Regards

 

The Mould

[twofoot]

This is sounding interesting. A few people will be eager to see the final outcome of this debate.

[harrassed senior]

Harrassed senior, I would say that you have some investigating to do in relation to your accounts/agreements/contracts in order to determine whether they have been sold/assigned.

 

If you have a copy of any of your agreements/contracts then I would also advise you to check the terms thereof and see if any of those terms purports to confer a benefit on a third party and that the third party is expressly identified in the contract by name, as a member of a class or as answering a particular description.

The Courts view contracts as private arrangements, a third party cannot interfere in that contract, or enforce that contract, as it is "none of their business". It has long been established in law that, no stranger to the contract can take advantage of a contact.

 

In order for a third party to hold a right to interfere in a contract that it was not a party to, the contract requires novation or assignment, or the contract will contain a term that expressly provides that he (the third party) may do so, or the term will purport to confer a benefit on him and, he (the third party) must be expressly identified in the contract.

 

Many, many cases on this subject, rameses, I am certain that you have the ability to do your own research/study, however, here is a recent case for you.

 

Avraamides and another v Colwill and another [2006] EWCA Civ 1533.

 

If the DCA is not expressly indentified in the contract (if there is a term in the contract that expressly provides he can enforce or a term in the contract purports to confer a benefit on him), the DCA is a third party and therefore a stranger who has no right to take advantage of the contract, it is none of his business.

 

Kind Regards

 

The Mould

 

 

 

Ok, thanks for that. When you say the Contract requires ......assignment, does that mean that if I have an original assignment from the OC to the first DCA then that makes them (the first DCA) a party to the Contract? But then these alleged debts get passed around and after the first assignment not many DCAs bother with a second Assignment etc. if you see where I am heading, so that by the time you are on the third of fourth DCA no further 'assignments' have taken place (or notified at least). For instance, by the time Cabot have one of my CC alleged debts, and is reporting to CRAS that it is 'Credit Card from Cabot', it has already been through 3 or 4 previous DCAs who have not provided any notice of Assignment. So even if Cabot have purchased the alleged debt, it was never 'assigned' down the chain, so can they really be a party to the Contract?

 

Hope that makes sense.

[rameses_qc]

Harrassed senior, I would say that you have some investigating to do in relation to your accounts/agreements/contracts in order to determine whether they have been sold/assigned.

 

If you have a copy of any of your agreements/contracts then I would also advise you to check the terms thereof and see if any of those terms purports to confer a benefit on a third party and that the third party is expressly identified in the contract by name, as a member of a class or as answering a particular description.

 

The Courts view contracts as private arrangements, a third party cannot interfere in that contract, or enforce that contract, as it is "none of their business". It has long been established in law that, no stranger to the contract can take advantage of a contact.

 

In order for a third party to hold a right to interfere in a contract that it was not a party to, the contract requires novation or assignment, or the contract will contain a term that expressly provides that he (the third party) may do so, or the term will purport to confer a benefit on him and, he (the third party) must be expressly identified in the contract.

 

Many, many cases on this subject, rameses, I am certain that you have the ability to do your own research/study, however, here is a recent case for you.

 

Avraamides and another v Colwill and another [2006] EWCA Civ 1533.

 

If the DCA is not expressly indentified in the contract (if there is a term in the contract that expressly provides he can enforce or a term in the contract purports to confer a benefit on him), the DCA is a third party and therefore a stranger who has no right to take advantage of the contract, it is none of his business.

 

Kind Regards

 

The Mould

 

Yes. We all know that a DCA CANNOT initiate any formal action on a debt that has been passed to them by a creditor. A third party who is not privy to the contract can neither have the benefits nor the obligations. This case confirms that, but it has always been part of contract law that someone who is not privy to a contract cannnot have the benefit. HOWEVER this Act does not stop a creditor passing an account to a debt collector in order to try and get payment of it, which is what you're trying to say. Debt collectors are NOT trying or purporting to enforce the contract (although they would like people to think that) All they are doing is trying to persuade the debtor to pay. They are not interfering in the actual contract by asking you to pay. All debt collectors can ever do is ask you to pay. You are not obliged to listen to them, nor pay them anything at all. We all know that DCAs come at you with bluster lies and subterfuge, but this means nothing. The contract is between the debt collector and the creditor, the creditor contracts with the DCA to try to get you to pay. The original contract never comes under the control of the DCA, and the DCA should pass any moneys they get straight to the creditor. They get commission from the creditor according to how much they collectIf the debt is assigned, then subject to certain conditions they CAN enforce it.Now, if you think I'm wrong, then I advise you to pursue your thinking through the Courts. If your assumptions are upheld, then I will be the forst to congratulate you

Edited October 19, 2010 by rameses_qc

[The Mould]

Where there has been no novation, no assignment and the Contract (Rights of Third Parties Act) 1999 (the Act) the prescibed language thereof is not met, then a DCA is a stranger to the contract between the creditor and the debtor and therefore cannot interfere as the contract is none of his (the DCA's) business. Do you understand that rameses?

 

Let's say that you (rameses) have loaned some money from a neighbour who lives down the other end of your street, you have borrowed say £150 from this neighbour (b) and the agreement/contract between you (a) and him (b) states that you are to pay b back over a 3 month period at a rate of £50 per month (because b knows you, he does not add interest onto the loan).

 

So, you make 2 payments to b as agreed, but on the third month you are unable to pay b the final £50, you and b further agree that you can pay the final payment next month (the fourth month), but because of your financial difficulties you cannot still pay b that final £50 payment.

 

You (rameses (a)) receive a knock on your door from b's friend or uncle or brother (a third party), they demand that you pay the £50 that remains owing to b, you say "this agreement I have with b is nothing to do with you, its none of your business, the agreement/contract is between me and b, you have no right to call upon me with your demands for a payment I owe to b". (or words to that effect)

 

The same applies to a DCA (third party) making contact with a debtor making demands for a payment of a sum or sums that the debtor owes to the creditor, the DCA must be a party to the contract, if none of the 3 things mentioned in para 1 apply, then the DCA has no right whatsoever to even demand that the debtor payup.

 

Kind Regards

 

The Mould

[The Mould]

There are still many thousands of consumers/debtors who do not know their full rights, this thread is designed to help those thousands who are made to believe that a party who is not a party to the contract can interfere in such contracts.

 

Many of us do indeed know that the DCA's are using questionable tactics (to put it mildly), but there are many still, who do not know and they believe that the DCA actually has some power granted to them as a matter of law.

 

Privity of Contract.

 

Kind Regards

 

The Mould

[rameses_qc]

Erm........I think I understand - after 15 years studying Law, I should do - We are actually agreeing - that DCAs have no power whatever to enforce a contract that they are not privy to. We ALL KNOW THAT. Legally the DCA cannot do anything at all BUT if you read the credit agreement/contract, there will usually be some kind of clause that the creditor/other party can use the services of a debt collection agency if the debtor/party does not pay for any reason. You do not have to communicate with a DCA at all You can ignore them completelyAll I am saying is, the Act you quoted can't be used for this purpose

[The Mould]

Rameses I can see that we agree on this subject, but only to a certain point, therefore I respectfully invite you to summon up all of your 15 years of studying law and to use your learned ability to contend against my argument.

 

An example taken from a general/basic credit agreement-

 

11 Transfering rights under this agreement

11.1 You may not transfer any of your rights or duties under this agreement.

11.2 We may transfer any or all of our rights or duties under this agreement to another organization (including organizations outside the European Economic Area). If we do this, we may let them have any information about you or an additional cardholder. We may also arrange for any other person to carry out our rights or duties under this agreement. Your rights under this agreement and your legal rights (including under the Consumer Credit Act 1974) will not be affected.

 

(A little further down in paragraph titled 'General')

 

13.4 Nobody other than we or you can enforce any part of this agreement, under the Contracts (Rights of Third Parties) Act 1999.

13.5 This agreement is governed by English law.

 

An example taken from an actual credit agreement and you will find that nearly all credit agreements contain the words written above (or are very similarly worded).

 

My argument is, even though this type of contract states that the creditor may transfer any or all of his rights or duties to someone (third party) contract does not expressly state which term purports to confer a benefit on him and, of vital importance the third party is not expressly identified in the contract.

 

Therefore a DCA that is not expressly identified in a contract where there is a term in such a contract that purports to confer a benefit upon him or the contract expressly provides that he may enforce the contract, has absolutely no right under English law to make contact with a debtor demanding a payment from him (the debtor), even if the creditor has instructed the DCA to make any such demands, because the DCA in these circumstances [is] a stranger (not a party) to the contract and the agreement between the debtor and the creditor is none of the DCA's business.

 

Do you agree rameses or are you going to contend against the fact of law?

 

Kind Regards

 

The Mould

[The Mould]

Here is a contract between two parties, it is not a regulated credit agreement (1974 Act (as amended), nonetheless it is absolutely relevant to the matter that this thread is the subject of.

 

Rameses, you and your neighbour (A and B) agree that you will paint B's fence red and B will pay you £450. A short while later the said parties agree that in fact A will paint the fence blue. A and B are free to change their minds in this way (modify the contract), however, C, a neighbour of B cannot enforce the contract on its original terms as C is a third party and the contract between A and B is none of C's business.

 

The same rule at law applies to third parties (DCA's) who are not expressly identified in the credit agreement (contract) between the debtor and the creditor.

 

Again I state the Contract (Rights of Third Parties) Act 1999 and Privity of Contract.

 

Kind Regards

 

The Mould

[unclebulgaria67]

The Mould

 

My reading of this is that the CCA's don't have to name the DCA's that having bought a debt could take enforcement action using the CCA. The DCA's would be of a class or answering to a particular description, as shown in bold below. The CCA's are deliberately vague because if they actually named DCA's that could enforce the debt, by the time any enforcement action was required, the DCA's may no longer exist. If they had to name the DCA in the CCA terms, the act would not have stated that the party enforcing the debt need not be in existence when the contract was entered into.

 

(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

 

(a)the contract expressly provides that he may, or

 

(b)subject to subsection (2), the term purports to confer a benefit on him.

 

(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

 

(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

[rameses_qc]

Mould, I really don't know why you keep going on about the CRTPA 1999?I know, and everybody else knows a DCA CANNOT enforce a credit agreement. Only the CREDITOR can do thatWhen a creditor passes the account to a DCA they are NOT passing any benefits or anything else to that DCA. All the are trying is saying to the DCA "try to get Mr A. Debtor to pay this money" This they are entitled to do.DCA is NOT trying to enforce the contract. He is trying to persuade you to pay. He can do NO MORE THAN THAT Asking a DCA to persuade you to pay IS NOT ASSIGNMENT nor is it NOVATION, nor is it giving them the right to enforce the contract. Are you confusing assignment of a debt, with actual DCA trying to persuade you to pay?No part of the original contract is held by or enjoyed by the DCA. The DCA has no knowledge of what terms and conditions are in the contract. The contract is of no interest to the DCA. There is a contract between the DCA and the creditor which states that, "if you persuade this person to pay, we will give you some money."The "benefit" of a contract, is that which you are contracted to perform. That means the benefit for the creditor is that you pay. The benefit for the debtor is that you are lent the money, or given the goods. That is called "consideration" - in the case of the debtor it is known as executory consideration. (it has yet to be done)That is the benefit that is assigned by the creditor is the benefit of receiving your payment. Assignment is covered under the Law of Property Act 1925, et al and must be done in accordance with that.When a DCA asks you to pay, there has been no assignment. The DCA is acting as the creditor's agent and tries to persuade you to pay. They have nothing to do with the original contract.The CRTPA 1999 does not in any way come into play, and you CANNOT use it to stop a DCA asking you to pay.

[The Mould]

Mould, I really don't know why you keep going on about the CRTPA 1999?I know, and everybody else knows a DCA CANNOT enforce a credit agreement. Only the CREDITOR can do thatWhen a creditor passes the account to a DCA they are NOT passing any benefits or anything else to that DCA. All the are trying is saying to the DCA "try to get Mr A. Debtor to pay this money" This they are entitled to do.DCA is NOT trying to enforce the contract. He is trying to persuade you to pay. He can do NO MORE THAN THAT Asking a DCA to persuade you to pay IS NOT ASSIGNMENT nor is it NOVATION, nor is it giving them the right to enforce the contract. Are you confusing assignment of a debt, with actual DCA trying to persuade you to pay?No part of the original contract is held by or enjoyed by the DCA. The DCA has no knowledge of what terms and conditions are in the contract. The contract is of no interest to the DCA. There is a contract between the DCA and the creditor which states that, "if you persuade this person to pay, we will give you some money."The "benefit" of a contract, is that which you are contracted to perform. That means the benefit for the creditor is that you pay. The benefit for the debtor is that you are lent the money, or given the goods. That is called "consideration" - in the case of the debtor it is known as executory consideration. (it has yet to be done)That is the benefit that is assigned by the creditor is the benefit of receiving your payment. Assignment is covered under the Law of Property Act 1925, et al and must be done in accordance with that.When a DCA asks you to pay, there has been no assignment. The DCA is acting as the creditor's agent and tries to persuade you to pay. They have nothing to do with the original contract.The CRTPA 1999 does not in any way come into play, and you CANNOT use it to stop a DCA asking you to pay.

 

rameses

 

15 yrs of studying law and that's what you respond with.

 

I do not need you to furnish me with what novation or assignment is.

 

Your posts are contradictory, the DCA has no right to try and 'pursuade' the debtor to pay a sum to the creditor he is acting on behalf of at the creditor's request/instruction. The DCA [is] a stranger to the contract/agreement between the debtor and the creditor, therefore the DCA has no right to 'ask' the debtor for a payment or when he intends on making a payment or why has he not paid any sum to the creditor.

 

The contract [must] contain a term expressly providing a right upon a third party or purporting to confer a right upon a third party to carry out the creditor's rights/duties and, that third party must be expressly identified in the contract.

 

I am not saying that when a DCA makes contact with a debtor demanding he pay a sum of money, that the DCA is ENFORCING the contract, I am saying that in circumstances where there has been no novation or assignment and the DCA is not expressly identified in the contract then, the DCA HAS NO RIGHT TO BE INTEFERRING IN THE CONTRACT BETWEEN THE DEBTOR AND THE CREDITOR, BECAUSE IT IS NONE OF THE DCA'S BUSINESS!!

 

Kind Regards

 

The Mould

[The Mould]

The Mould

 

My reading of this is that the CCA's don't have to name the DCA's that having bought a debt could take enforcement action using the CCA. The DCA's would be of a class or answering to a particular description, as shown in bold below. The CCA's are deliberately vague because if they actually named DCA's that could enforce the debt, by the time any enforcement action was required, the DCA's may no longer exist. If they had to name the DCA in the CCA terms, the act would not have stated that the party enforcing the debt need not be in existence when the contract was entered into.

 

(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

 

(a)the contract expressly provides that he may, or

 

(b)subject to subsection (2), the term purports to confer a benefit on him.

 

(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

 

(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

 

 

Uncle B

 

The third party need not be in existence at the time that the contract is concluded, but the third party [must] be expressly identified in the contract.

 

If the debt is sold (assigned) to a DCA, then that is a different matter, if novation has occurred in the contract then that also is a different matter.

 

Where there has been none of the above and the third party (DCA or anyone else) is not expressly identified in the contract then, that third party is a stranger to the contract between the debtor and creditor and as such the said contract is NONE OF THE DCA'S (THIRD PARTY'S) BUSINESS.

 

I am not shouting that at you by the way.

 

Kind Regards

 

The Mould

[rameses_qc]

Well, it's clear you have no understanding of the legal concept involved. I shan't post on this subject again as there's no point; I'm afraid you're blinkered in your outlook I advise you to try your theories before a District Judge, sooner rather than later, and let the forum know the outcome.