Cap1 & CCA return

[Number6]

Blimey, i didn't know they could make a sworn statement? Surely then, they will just do that?! Nobody could disprove them, and after all, its not like these are honest people we are talking about. They do WHATEVER it takes to get their muddy paws on hard cash. That deflates me a bit, i thought it was NO CCA NO CASE. Ho hum

 

Don't get worried by all this A+.

 

In general terms if the case were to proceed to court then the parties would be ordered to produce original documents to the court under the Standard Directions section of CPR Part 27. If the lender were then to start saying that the original document cannot be found then all sorts of other rules come into play under the auspices of the Civil Evidence Act 1995. At this point things would become very messy indeed for the lender and it's unlikely they would go to these lengths.

 

It's a high probability that if they cannot produce the original document, especially where it could be reasonably deduced that the copy (as in your case) is not strictly kosher that the lender would run a mile.

[Suetonius]

How then, can they buy it back, unless they give back the tax relief, and re-imburse the insurance company? How likely is it that that occurs? I think rather more likely is that they'll buy it back then flog it to the next DCA on their list - more money made for them.

 

Might answer your question

 

Credit, debts and related services: Debts and related services: Sale and assignment of a debt

 

"In some cases the sale contract may allow the purchaser to return these accounts and gain a return of the relevant purchase amount."

[Peterbard]

Might answer your question

 

Credit, debts and related services: Debts and related services: Sale and assignment of a debt

 

"In some cases the sale contract may allow the purchaser to return these accounts and gain a return of the relevant purchase amount."

 

 

Hi

Excellent workS

 

Not seen this

 

Many thanks

 

Peter

[MAGDA]

Might answer your question

 

Credit, debts and related services: Debts and related services: Sale and assignment of a debt

 

"In some cases the sale contract may allow the purchaser to return these accounts and gain a return of the relevant purchase amount."

 

So it might be the case then that Link had a "chargeback agreement for unsupported balances" according to the above and could therefore pass it back to the OC, recovering their losses. It also distinguishes the sale of a debt from the assignment of a debt with the following statement:

"Often it will not be possible for the assignee to sell that which has been assigned" which I gather would apply to an equitable assigment?

Very interesting, many thanks Magda

[lexis200]

Very interesting I agree.

 

This bit particularly grabbed me

The purchaser of a debt portfolio has no right of recourse to the seller for un recovered debts except where debts are deemed to be irrecoverable prior to the date of purchase e.g. deceased customers.

As I read it, this is saying that the DCA could not 'sell' the debt back to the OC unless there was an undeniable issue with it - say an unenforceable agreement?

 

So to my mind, the if the DCA is able to collect (ie debtor not dead, or agreement enforceable) they will give it their best shot; if they can't they'll chuck it back to the OC pretty damn swiftly as it's not going to make them a bean - or pass it on to a lower DCA (is that possible???) and hope they don't notice they've been stiffed. Going on that logic, would it be a giant leap to say that where a debt has been sold to a DCA, but they have later returned it to the OC, it's because they have been handed a debt that is 'deemed to be irrecoverable'?

 

I hope I've written that clearly - I know what I want to say, but I'm not sure I've explained too well!

 

It still doesn't explain what happens to any insurance/tax payouts the OC may have received though...

[Peterbard]

Very interesting I agree.

 

This bit particularly grabbed me

 

As I read it, this is saying that the DCA could not 'sell' the debt back to the OC unless there was an undeniable issue with it - say an unenforceable agreement?

 

So to my mind, the if the DCA is able to collect (ie debtor not dead, or agreement enforceable) they will give it their best shot; if they can't they'll chuck it back to the OC pretty damn swiftly as it's not going to make them a bean - or pass it on to a lower DCA (is that possible???) and hope they don't notice they've been stiffed. Going on that logic, would it be a giant leap to say that where a debt has been sold to a DCA, but they have later returned it to the OC, it's because they have been handed a debt that is 'deemed to be irrecoverable'?

 

I hope I've written that clearly - I know what I want to say, but I'm not sure I've explained too well!

 

It still doesn't explain what happens to any insurance/tax payouts the OC may have received though...

 

Hi

I am not sure wht is meant by this i am not aware of any of these benifits. Doesn't mean it isnt true but i would like to hear more .

 

Peter

[Suetonius]

It still doesn't explain what happens to any insurance/tax payouts the OC may have received though...

 

There is a lot of info there, if you look through the main contents at the bottom..

 

5.7 might shed some light

 

 

HM Revenue & Customs

 

A factor cannot claim bad debt relief for debts assigned to him by his client. The client cannot claim bad debt relief for a debt assigned to a factor but can do so if the factor re-assigns the debt to him (see Notice 700/18 Relief from VAT on bad debts).

[MAGDA]

Regardless of whether there is a clause in the Deed of Assignment enabling the Assignee to re-assign the debt to the Assignor, shouldn't it still be necessary to provide a notice of Assignment or something to explain what has taken place, i.e., to clarify who now owns the debt and how? Magda

[car2403]

Regardless of whether there is a clause in the Deed of Assignment enabling the Assignee to re-assign the debt to the Assignor, shouldn't it still be necessary to provide a notice of Assignment or something to explain what has taken place, i.e., to clarify who now owns the debt and how? Magda

 

According to s.136 Law of Property Act, it is;

 

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...

[MAGDA]

many thanks car, Magda

[pussycatdoll]

Could someone cast their eye over the letter I intend to send to one of the banks re zeroing balance for unenforceable application form.

 

http://i558.photobucket.com/albums/ss25/pussycatdoll_01/unenforceableletter.gif

 

Thanks

[whu1]

Just received a letter from solicitors acting on behalf of Capital Once CC. Indicating I must pay and also court costs and fees:shock:.

 

I have been doing the process with Capital One for months and have still to receive a copy of the agreement.

 

Anyone been at this stage, what would be your advice be. Will be contacting them tomorrow to explain account is in dispute etc

 

Will it go to court..............if it does, I will not have a clue how to deal with it????

[basa48]

Could someone cast their eye over the letter I intend to send to one of the banks re zeroing balance for unenforceable application form.

 

Thanks

 

Good letter.

 

Note that rendering unenforceable is by way of 142(1) and 127(3).

[MAGDA]

Just received a letter from solicitors acting on behalf of Capital Once CC. Indicating I must pay and also court costs and fees:shock:.

 

I have been doing the process with Capital One for months and have still to receive a copy of the agreement.

 

Anyone been at this stage, what would be your advice be. Will be contacting them tomorrow to explain account is in dispute etc

 

Will it go to court..............if it does, I will not have a clue how to deal with it????

 

I have had similar ones from Cap one, are the solicitors Brian Carter. These are basically sent to frighten you into ringing and making a payment because you think you'll be taken to court. In my experience, if you write back to them and reiterate that the account is in dispute and the reasons why, they won't actually take you to court. Having said that, if they did, you would defend it anyway.

 

Did they actually say in their letter that if you didn't respond within a certain number of day they would issue the court claim without further reference to you.

 

If they did you could try sending something along the lines of the letter below, which I use, and it did the trick, they haven't been in touch since:

 

 

Dear Sir,

 

WARNING THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES. PLEASE DO NOT IGNORE

 

I am in receipt of your letter dated xxxxxx; which was received on xxxxxxxxx. You have indicated that

[a) You are giving Formal Notice that your client has instructed you to commence court proceedings against me without delay and

b) Papers are now being prepared for commencement of action through my local court to seek a judgement against me

 

I am sure that you are aware that I have long since requested from your client, under the Consumer Credit Act 1974 (The Act) a copy of the agreement to which both you and your client allege I am a signatory. To date this has not been provided to me and the account has subsequently been placed in dispute. I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and your client's persistent, unexplained and wilful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted omissions under Regulation 3(2) excepted), your client has made plain its intention to begin legal proceedings against me. In consequence this matter may now be treated as one which is subject to the control of the Civil Procedure Rules.

 

Take notice therefore that under CPR Practice Direction - Protocols paragraph 4.6(a) and (d), I request that you supply copies of the following documents:

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and

2] Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request under the Practice Direction is not a request for production within the confines of the Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in the event that your client shall begin a claim.

 

A copy of the documents I have requested should be supplied to me within 14 days and you are urged not to begin proceedings for a period of not less than 14 days following the supply of those documents to me

 

Should your client elect to ignore my request under the Practice Direction and commence proceedings, it is likely that I shall repeat my request for the provision of documents under CPR 31.14. In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings upon the claim be stayed pending provision of the requisite documents, in the course of which application I will of course refer to this and previous requests for the provision of copy documents

 

I look forward to hearing from you within the time stated.

 

Yours faithfully

 

Best of luck, Magda

Edited March 29, 2009 by MAGDA

[Peterbard]

HI

I would adviseing haveing a look at the rankine cas in view of this leter.

The judje there decided that he could not invoke section 142 on a similar request because if section 77 or 127 had been breached the agreement was unenforceable The section says where a creditor can do a thing on an enforsement order obviouly none could be issued if the ageement was unenforceable because of the above sections

 

This is the reasoning behind the judge at rankine triai. THe mistake i think the rankines made was to use section 76 and 127 at the hearing .this is important.

 

The answr is to make the requests under section 55 65 or 67 improprely executed documents then the court could enforce so ther abbility to action 142 is enabled.

Then bring in the reasons why he shouldnt. ( the improper cexecuton and the lack of prescribed terms or whatever.

This is of course a wrong decision by the judge but we have to live with it and find away aroufnd it this may be the way.

 

If you follow this of course there is a chance that the judge will say no i wont action secton 142 and let the creditor enforce .

You can then have the hearing set asside or appeal and quote section 77 or 127 and say it unenforceable anyway.

Really all you are after is getting the unenforceability rubber stamped but it is not that easy and it just got harder.

Peter

Edited March 30, 2009 by Dodgeball

[Having_A_Knightmare]

Has anybody got a copy of the Rankies case

[pt2537]

Has anybody got a copy of the Rankies case

which one?

 

there is the MBNA and the Amex ones

[Having_A_Knightmare]

Not sure Paul I thought there was only 1....

[Viscount Stair]

Here is the Amex one:

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

[Viscount Stair]

The reference in the judgment to the wrong set of regulations has been noted before.

 

As has the fact that the dicta on Default Notices fly in the face of Woodchester v Swayne, which as a Court of Appeal judgment was binding on His Honour, even when sitting as a Deputy Judge of the High Court.

 

The best that can be said for Rankine v Amex and ors is that it turns on its own facts. The worst that can be said is that it was wrongly decided.

[Having_A_Knightmare]

Thanks VS

 

Interesting reading....

 

HAK

[camry1980]

Hi

 

I new to this, I have recieved a reply to my credit agreement request and I quote from it, " as the application was made in 1997 we cannot obtain a copy of the credit agreement. However we enclose a copy of an agreement you would have signed when opening the account.

 

What should I do. As far as I know this is breaking the consumer credit act. What should I write back with.

[lexis200]

There is a lot of info there, if you look through the main contents at the bottom..

 

5.7 might shed some light

 

 

HM Revenue & Customs

 

A factor cannot claim bad debt relief for debts assigned to him by his client. The client cannot claim bad debt relief for a debt assigned to a factor but can do so if the factor re-assigns the debt to him (see Notice 700/18 Relief from VAT on bad debts).

 

Thanks Suetonius, that's great.

 

So, in essence,

 

 

• A DCA can not clam debt relief if they don't get paid for a debt they've bought
  
• An OC can not claim debt relief if they sell the debt on (I'm assuming here that if they simply have a DCA manage it for them, they are still getting a percentage of payments so would still not be able to claim debt relief)
  
• An OC may claim debt relief if they decide enough is enough and give up on trying to collect
  

Have I read that right?

 

Now if only it was possible to find out if they'd claimed relief on debts they sold, thus getting a double whammy. I'm finding it very hard to believe that it works out better for them to sell a debt at 10-20% (ballpark figure), than to write it off and get the relief in the form of VAT and insurance, so if so what is the impetus to sell?

 

Perhaps you might be able to shed some light on that last bit Peterbard? You seem to know your onions with write offs:D

 

Lexis:)

[camry1980]

Hi

 

I new to this, I have recieved a reply to my credit agreement request and I quote from it, " as the application was made in 1997 we cannot obtain a copy of the credit agreement. However we enclose a copy of an agreement you would have signed when opening the account.

 

What should I do. As far as I know this is breaking the consumer credit act. What should I write back with.

[lexis200]

I think I've just answered one or two questions thanks to suetonius' link.

 

When you can reclaim VAT on bad debts

 

You can reclaim VAT that you paid to HMRC and which you have not received from the customer. The conditions are that:

 

• the debt is more than six months old and less than three years and six months old
  
• you have written off the debt in your VAT accounts and transferred it to a separate bad debt account
  
• the debt has not been sold or handed to a factoring company
  
• you did not charge more than the normal selling price for the items
  

2.8 How long must I keep the records?

 

After making the claim you must keep all the records listed in paragraph 2.5 for 4 years from the date you make your claim. This requirement does not alter the standard requirement to retain records for six years So technically we could ask for this within an SAR?– see Notice 700 The VAT guide for details.

 

 

3.12 What if I assign or factor the debt?

 

Some businesses employ factoring companies to improve their cash flow. If debts are factored bad debt relief is not available where an assignment of the debt is absolute (that is where there is no provision for the reassignment of the debt in the contract).

Where there is provision for the reassignment of a debt, bad debt relief will be available once the debt is reassigned to the trader. Could explain the GE Money/Link thing Magda - this could be why GE are having it back? No bad debt relief can be available during the period in which the debt remains assigned to the factor.

If you receive a payment from the factor for the purchase of the debts, this is considered to be for an exempt supply of finance and therefore will be disregarded for the purposes of bad debt relief.

 

 

OK, so it looks like unless they want to run the risk of being had up on VAT evasion, they're not going to be selling it on and claiming the VAT, and I would assume this would be the same regarding insurance.

 

 

To be honest I'm not sure where I'm going with this - it's a point of interest I think, but if anyone can see a use for it then do shout:)