Cap1 & CCA return

[MAGDA]

Hi,

 

back to novation..........

 

So is it right to assume that if the DCA responds to a s78 without quoting the property act and "right to the debt, but no obligations" horse poo, that the DCA has been assigned it and it is not a novation?

 

How can we ascertain for certain whether it is a "novation" or "assisgnment"?

 

If the debt has been assigned, the benefit, but not the liabilities of the debt are assigned, whereas with a novation, both burdens and benefit may be transferred, but only with the consent of the other party to the contract.

 

"As lord Browne-Wilkinson stated in one of the leading cases on this subject, “It is trite law that it is in any event impossible to assign the contract as a whole, including both burden and benefit. The burden of a contract can never be assigned without the consent of the other party to the contract, in which case such consent will give rise to a novation.” Linden Gardens Trust Ltd –v- Lenesta Sludge Disposals Ltd (1994) 1 AC 85, 103”

 

Hope this helps, Magda

[ncf355]

Thanks Magda -

 

But surely that would never happen, as the DCA will never want the burden of the rights, so why would they want to bother with getting the Debtor to agree and make a novation?

 

So, can I assume then that if a DCA is replying to S78 requests and sending s87 notices then it should be a novation, not a assignment?

 

Forgive me if I'm being 'fick' here, normally wrap my head around these issues quite easily but this has got me 'flummoxed, innit'

[MAGDA]

Thanks Magda -

 

But surely that would never happen, as the DCA will never want the burden of the rights, so why would they want to bother with getting the Debtor to agree and make a novation?

 

So, can I assume then that if a DCA is replying to S78 requests and sending s87 notices then it should be a novation, not a assignment?

 

Forgive me if I'm being 'fick' here, normally wrap my head around these issues quite easily but this has got me 'flummoxed, innit'

 

Hi ncf, the DCA's do sometimes come back with the statement that they don't have the duties under the agreement, only the benefit, and therefore don't have to respond to a CCA request, and obviously they do this because they don't want to provide the information and this is a way to avoid doing so. However, most of them do respond (eventually) but it is a fact that only the benefits of an agreement can be assigned under law, not the liability. I think most of the time, when the ownership of a debt is transferred, it is an assignment, not a novation. If a novation had taken place, you would know, as you would need to give your consent. The DCA's pick up on the fact that the liabilities cannot be assigned, but the definition of liability and duty are not the same. In my opinion, if they purchase the debt, they have an obligation to provide any information related to that agreement, but some DCA's such as Cabot and Link choose to misinterpret this. Magda

Edited October 28, 2008 by MAGDA
typo

[IIIUMINATI]

Hello all

I have been having a bit of personal stress needed some one to punch

so please disregard my recent posting.

I get a little mad when people find this site and immediately post things like is this agreement enforceable. Much history is available regarding this matter and research on the past post can revalue many answerers regarding this questions.

Technical questions can alter on a daily basis ie: recent judgments

press reports. The recent Times report regarding charging orders for unsecured debts. Very worring for many how ever when discussed on this forum many readers will realize that head lines are there to sell news papers

So I am fully committed to try and help

knowledge is power .

[MAGDA]

Hi Illuminati, I think that people often post a question on this thread as it seems the most likely place to get an answer. Unfortunately, a lot of personal threads do not receive any response as there are so many. In addition, a person who is inexperienced and may only have recently joined the site, might see this thread as the most obvious place to post, especially if their query does concern consumer credit agreements or something related. At the end of the day, I really don't think it matters to be honest, as the important thing is that the person receives the help that they need. If the subject is going to be very long drawn out, such as a court claim for which they need help, then obviously a new thread is ideal, but for one off questions, even if they have been covered before, surely that should be ok. Magda

[mfpa]

If the "burden" of the contract cannot be passed to a third party along with the benefits unless the other party to the contract agrees, what is the position in respect of a credit card taken out with one lender but now provided by a different lender (for example MBNA taking over accounts previously held with Alliance & Leicester) where the customer was not required to sign any acceptance of the new lender?

[make them aktiv runners]

If the "burden" of the contract cannot be passed to a third party along with the benefits unless the other party to the contract agrees, what is the position in respect of a credit card taken out with one lender but now provided by a different lender (for example MBNA taking over accounts previously held with Alliance & Leicester) where the customer was not required to sign any acceptance of the new lender?

 

The contract is novated to MBNA using the original terms and conditions of the A & L agreements. Consent is effectively given upon making the agreement. This differs to the DCA's because the receiving company is a financial institution capable of giving drawdowns (further credit can still be taken on a credit card).

 

The link in post 12989 helps.

[Acerfan]

Hi,

I hope that someone here may be able to offer an answer to my question. I do have my own thread on the subject but haven't been able to keep it up to date and often do not get responses. I have an alleged agreement with a bank for a loan for which I sent off a CCA request in 2006. The bank responded after the timescale with an incorrect agreement (for a lower amount which was cancelled and incorporated into a larger amount before the funds were cleared). They eventually sent a copy of the agreement for the larger amount but did not include the cancellation rights. Despite my attempts to get them to send the cancellation rights (including sending a S.A.R - (Subject Access Request)), they have given me no copy of these rights (mentioned in the agreement) or any evidence that they sent them to me. There were 2 agreements (1 cancelled by the second) and one was actually signed when a member of staff visited me at my place of work. I cannot recall which agreement was signed on the bank premises and which was not - I seem to recall that this has some bearing on the bank's obligations.

My question is this: on these grounds can I, if they send the cancellation rights, cancel the agreement and repay the initial amount borrowed minus any payments made (but not including any interest or charges). I think I may have read somewhere that someone has done this, but I think I may also have read that there is a time limit. I would be grateful of any advice anyone can give or if you can point me in the right direction to find out for mself that would be greatly appreciated.

My complaint really is that I was given no opportunity to asses whether I could afford the increased monthy repayments or to extend the payment holiday. I also do not believe I was given a copy of the agreement at the time of signing although I do not have any evidence of this. I really want to point out to the bank that their irresponsible actions in not giving me these opportunities to asses the situation are indicative of their general failings and I would like them to receive a shock which they would learn from. To this end, I would ideally like to show them that they have no right to any repayment from me. Should it be necessary however, I would of course repay the initial amount as mentioned above.

This has dragged on for far too long now and has been passed on to a dca so I would really like to get this cleared up as soon as possible.

 

I would be most grateful if anyone can give me any help with this. If it's easier and offers less distraction from this topic, please feel free to respond by PM or in my thread Suspect I have no loan agrrement

[ncf355]

Magda -

 

(didnt want to quote your full post)

 

Thanks for your explanation on the Novation

 

ATB

 

NcF

[MAGDA]

Magda -

 

(didnt want to quote your full post)

 

Thanks for your explanation on the Novation

 

ATB

 

NcF

 

You're welcome, Magda

[Having_A_Knightmare]

Hi All

 

Can somebody answer me a questin please.

 

I have a Court case were I sent my defence to the Court but the creditor has not replied to it and the case has been Stayed.

 

Not sure what to do next. Can the Creditor easily lift the stay...etc

 

HAK

[MAGDA]

Hi HAK, what stage are you at - have your AQ's been sent in to the court, and if so, did you attach any draft directions. If the claimant was ordered to respond and hasn't, you can actually request that their claim be struck out. As far as I am aware, stays can be lifted quite easily, and even if a case is struck out, the claimant can just apply to the court to have it reinstated (which happened on one of mine) and the court normally obliges! That's the trouble, the claimant takes as long as they want to respond and get away with it, unfortunately. Magda

Edited October 30, 2008 by MAGDA
added text

[pt2537]

Hi All

 

Can somebody answer me a questin please.

 

I have a Court case were I sent my defence to the Court but the creditor has not replied to it and the case has been Stayed.

 

Not sure what to do next. Can the Creditor easily lift the stay...etc

 

HAK

 

If the claim is in Northampton then the way we deal with this is to make an application for directions

 

how long has the case been on hold?

[Having_A_Knightmare]

HI

 

The claim is at the bulk centre in Northampton.

 

Basically I sent in my defence and I got a letter saying the claimant has 28 days to respond. They have not responded so I call the bulk centre today and they said it has been stayed.

 

PT it was stayed 2 days ago.

 

HAK

[MAGDA]

HI

 

The claim is at the bulk centre in Northampton.

 

Basically I sent in my defence and I got a letter saying the claimant has 28 days to respond. They have not responded so I call the bulk centre today and they said it has been stayed.

 

PT it was stayed 2 days ago.

 

HAK

 

Exactly the same thing happened with all four claims Link issued against me. Mine also initially went through Northampton and Link did not respond within the 28 days. A stay was placed on all of the claims, which I thought might mean the claims wouldn't proceed, but very soon afterwards, one by one, all of the stays were lifted as Link paid a fee to get them all up and running again. In my experience, if the claim is stayed at this stage in the proceedings, it doesn't mean a lot - the claimant just takes their own sweet time in responding. Magda

[Acerfan]

Hi,

I there any chance someone would be able to take a look at my post #13000 please?

Many thanks

[citizenB]

Hi,

I there any chance someone would be able to take a look at my post #13000 please?

Many thanks

 

Please find Acerfan's question here

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-650.html#post1789202

 

and link to own thread here

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/40180-suspect-i-have-no.html

[angry cat]

RE: LINK FINANCIAL

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1793092.html

 

AC

[tinkerbell20]

Just to give you heart.............:grin: GE money through their solicitors Howard Cohen threw the towel in last week and discontinued their claim against me even though they were using the Rankine argument. I had defended on basis that the agreement was unenforceable and they had served a variety of faulty default notices..............:grin::grin: I was told the day before the case was due to be heard ..............now I'm just trying to workk out what I can claim for costs...........

[Viscount Stair]

GE Money do not seem to take a very environmentally friendly attitude to Default Notices, do they?

 

I have seen a whole barrage of them for a relatively small amount in the scheme of things. None of them appear to be defective taken on their own but I am hazy about the effect of sequential DNs.

 

Apologies in advance if this has been done to death but what is the view on the validity of the subsequent DNs?

[tinkerbell20]

GE Money do not seem to take a very environmentally friendly attitude to Default Notices, do they?

 

I have seen a whole barrage of them for a relatively small amount in the scheme of things. None of them appear to be defective taken on their own but I am hazy about the effect of sequential DNs.

 

Apologies in advance if this has been done to death but what is the view on the validity of the subsequent DNs?

 

 

The lender can "cure" the defect by issuing a fresh DN UNLESS they have already terminated agreement and say sold it on or issued court proceedings. So current advice on here is not to alert the lender to the fact that you are aware that the default notice is defective until it is too late.................

[Viscount Stair]

Thanks for clarifying.

[car2403]

The lender can "cure" the defect by issuing a fresh DN UNLESS they have already terminated agreement and say sold it on or issued court proceedings. So current advice on here is not to alert the lender to the fact that you are aware that the default notice is defective until it is too late.................

 

If that is true, it won't matter how "late" it is they could still issue a new one.

 

I'd disagree with that opinion, actually - take a looky here; (from post #49)

 

It's interesting that 2 Default Notices were issued. IMHO, this could be an unlawful Default (the second one) in that the original Default Notice would have resulted in termination of the agreement - along with the right to reissue the Default Notice again, as has happened here. The only way I can see that second Default Notice taking legal effect would be if you had expressly consented to the further Default/Termination, which, it seems, you didn't do.

 

There's no caselaw I'm aware of that proves this point, but the wording of s.87/s.88 suggests (implicitedly at least) that a Default Notice is final and the subsequent Termination as a result of non-compliance with it would also cover further Default/Termination activity.

 

You can refer to Woodchester Lease Management v Swain and all the Wilson cases, but there is no legally definitive view in either case I'm aware of.

[Viscount Stair]

That is interesting.

 

My (very hazy) understanding is that Woodchester is authority for the principle that a defective DN can give rise to an unlawful repudiation but I assumed that was related to the subsequent termination (or some other act inconistent with the original contract) and not to the DN itself.

 

Food for thought.

[tinkerbell20]

If that is true, it won't matter how "late" it is they could still issue a new one.

 

I'd disagree with that opinion, actually - take a looky here; (from post #49)

 

 

 

You can refer to Woodchester Lease Management v Swain and all the Wilson cases, but there is no legally definitive view in either case I'm aware of.

 

 

In that case the Lender had proceeded to terminate the account, liquifying the total amount outstanding, grossly misstating arrears in process and then issued court proceedings.

 

If the lender had realised that they had issued a invalid default notice PRIOR to the termination of the account etc then they are able to "cure" the defect simply because they have not actually terminated the account at that point they are merely saying what they are going to do if the breach isn't remedied. Court proceedings being issued are in themselves effectively termination of the agreement as the lender is not entilted to all the money owing unless they have complied with s.87. Therefore any court proceedings are dealing with a DN after the account has been terminated by a invalid DN.