Link & Natwest Credit Card CCA - they say it doesnt apply agreement is terminated?

[tbern123]

s.77/8 come under part VI of the CCA which applies to 'matters arising in the currency of agreements'.

 

http://www.passprotect.studio400.me.uk/Consumer_Credit_Act_1974.PDF

 

The legal right to enforce the debt stems from the contract between the original creditor and the DCA.

 

Sorry Zoot, I know you are a site helper, but I disagree with your interpretation of the Consumer Credit Act.

 

When a debt is is sold to a DCA as it has in this instance it is called an Assigment of Debt. Please see a explanation of this term below and it's reference within the CCA

 

189. Definitions

"Creditor" means the person providing credit under a credit consumer agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit, includes the prospective creditor'

 

Assignment of Debt

Where a debt owed to a party is assigned (sold) by that party to another. The party who owes the money then pays the new lender. Notice of assignment of a debt should be in writing.

Assignment of Debt

 

How can a DCA register a default if an agreement is not in place. As it is not possible to default on a non-existant agreement

[zootscoot]

Sorry Zoot, I know you are a site helper, but I disagree with your interpretation of the Consumer Credit Act.

 

Feel free to disagree, but I have some knowledge in this area as I lecture in contract and consumer law.

 

 

 

189. Definitions

"Creditor" means the person providing credit under a credit consumer agreement or the person to whom his rights and duties under the agreement have passed by assignmentor operation of law, and in relation to a prospective consumer credit, includes the prospective creditor'

 

 

I have put in bold the relevant part

 

How can a DCA register a default if an agreement is not in place. As it is not possible to default on a non-existant agreement

 

They are immediately entitled to the money and if you do not pay they can default you. If you enter a payment arrangement with them and fail to keep that up they can then default you for failing to comply with the new agreement.

[tbern123]

 

They are immediately entitled to the money and if you do not pay they can default you. If you enter a payment arrangement with them and fail to keep that up they can then default you for failing to comply with the new agreement.

 

I stand corrected on the previous points in recognition of your experience...

 

But this is where it gets confusing. You say failing to comply with the new agreement. Firstly, if this is the case why is the date of the default the same as the one from the original creditor, secondly what new agreement ?

[zootscoot]

If a DCA has placed a default against you on the date of the default with the original creditor presumably they would not have owned the debt on that date and therefore would not be entitled to register a default. You should send a statutory request asking them to remove it on the grounds that it was incorrectly placed.

 

The new agreement would be if you entered a payment arrangement with them.

[tbern123]

If a DCA has placed a default against you on the date of the default with the original creditor presumably they would not have owned the debt on that date and therefore would not be entitled to register a default. You should send a statutory request asking them to remove it on the grounds that it was incorrectly placed.

 

The new agreement would be if you entered a payment arrangement with them.

 

That's where I hit a problem. It is impossible to directly communicate with the company that placed the default on my file. Furthermore their acting agents have already refused to remove the default. I have never made an agreement with the defaulting company as they have never contacted me.

[Turnaround]

Zootscoot, you have to admit that your knowledge in this area appears to conflict with the judges interpretation of the CCA, when they throw the debt out because it is not properly documented.

[zootscoot]

Which case are you referring to?

[Turnaround]

My case

[zootscoot]

In what way was the debt not properly documented?

[Turnaround]

I will reply on the other thread "Re: Debt Collection Agencies & Credit Consumer Act 1974 " so as not to hijack this one

[file_wizzard]

so let me get this straight, defaulted loan gets sold by bank to a debt collection agency. Said agency is then under no obligation to prove they are owed the money.

Yes they are, but this is governed by the Law of Property act, and they would need to prove that they have legal title to the amount owed which is normal document by a simple note of sale.

[mickthemiller]

Thanks for that file wizzard. Would the note of sale show the amount due? would this note refer to the original agreement? would the original agreement be needed to prove the debt exists?

[file_wizzard]

Thanks for that file wizzard. Would the note of sale show the amount due? would this note refer to the original agreement? would the original agreement be needed to prove the debt exists?

No the note of sale would not have to disclose the amount that the item was sold for, just that the "benefit" / amount owed to the original creditor had been assigned / sold to the current claimant.

 

Also, yes if they took the matter to court the judge would wish to see the original contract that the assignment relates too.

[file_wizzard]

Thanks for that file wizzard. Would the note of sale show the amount due? would this note refer to the original agreement? would the original agreement be needed to prove the debt exists?

No the note of sale would not have to disclose the amount that the item was sold for, just that the "benefit" / amount owed to the original creditor had been assigned / sold to the current claimant.

 

Also, yes if they took the matter to court the judge would wish to see the original contract that the assignment relates too.

[andybhoy]

So, Zoot, if you are saying that a DCA does not have provide an original agreement under the CCA, and that a simple letter from the original crediot would suffice, could you then send the original creditor a CCA request?

 

If you could, and they could not provide an original agreement, would the debt be completley unenforceable?

 

I still have trouble with the fact that anyone calling themselves a DCA can start hasseling anyone for money without having to provide documentation that you owe them money!!!

[stiffnuts]

Dont know what has happened here

[mickthemiller]

Is that true stiffnuts? to be absolutely clear, the alleged debt is on an account 4+ years old. Link Financial are saying that as the agreement was terminated by the original lender due to non-payment (which ended in the account defaulting and being sold on to their good selves). They are argueing that the agreement therefore is no longer current.

[stiffnuts]

Is that true stiffnuts? to be absolutely clear, the alleged debt is on an account 4+ years old. Link Financial are saying that as the agreement was terminated by the original lender due to non-payment (which ended in the account defaulting and being sold on to their good selves). They are argueing that the agreement therefore is no longer current.

 

Ok I dont know what the debt is so I will try and answer on limited knowledge. The agreement could NOT have been terminated by the original lender, they may wish to terminate the agreement by issuing a default notice.

 

Termination of an agreement under section 98 only applies to non default cases where the debtor is in breach. Therefore the account will be in default and the agreement is still current.

 

Default and termination are not the same thing

 

If they are saying the agreement is no longer current then why are they pursuing you? Remember everyone has rights and remedies under the CCA1974.

 

If you want my advise Link are trying it on and have shot themselves in the foot a bit by using incorrect terminology and denying you your rights.

 

Go back and ask Link.

 

I refer to your letter dated ??? where you advised me that the agreement was terminated by the original lender. Can you please advise me how the original lender terminated the agreement in accordance with the terms of the consumer credit act 1974. (They should come back and say a default notice was issued in accordance with section 87)

 

If you are saying that the agreementt is no longer current then I can only assume that no debt is payable. Can you plesae confirm that the agreemnet is no longer current.

 

This will play with there heads.

 

Let me know how it goes

[stiffnuts]

I have just being going back over some of the posts and the amount of inaccurate advice given by some posters is frightening.

[elsinore]

I have just being going back over some of the posts and the amount of inaccurate advice given by some posters is frightening.

 

As one who might have been guilty of that stiffnuts, perhaps you could find time to enlarge on the above.

 

Elsinore

[stiffnuts]

As one who might have been guilty of that stiffnuts, perhaps you could find time to enlarge on the above.

 

Elsinore

 

Hi mate I was talking about this thread and I cant see that you have posted on this thread apart from now.

[elsinore]

O.K. good, I thought you were making a general comment.

 

Elsinore

[sam19677]

I have just being going back over some of the posts and the amount of inaccurate advice given by some posters is frightening.

 

Hi, what information do you feel is inaccurate and why do you feel that your advice is "right"

[mickthemiller]

thanks for that stiffnuts. I'll get your letter out over the weekend. I'll keep ya posted!

 

Mick the Miller

[zootscoot]

The agreement could NOT have been terminated by the original lender, they may wish to terminate the agreement by issuing a default notice.

 

The agreement may well have been terminated by the original creditor, as Mick is unsure of whether he received a default notice because he was not opening mail. He did not request the documents until four years later so at the time of the original creditor terminating the agreement the original creditor was not in default under s.77/8.

 

If you are saying that the agreementt is no longer current then I can only assume that no debt is payable. Can you plesae confirm that the agreemnet is no longer current.

 

If the original creditor terminated the agreement for repudiatory breach by Mick, they would be entitled to claim damages amounting to the sum outstanding on the debt. It may well be this debt consisting of the legal entitlement to damages which was sold on rather than the debt under the agreement. If so this would mean the debt is still due even if the contract is no longer in existence and would also mean there is no obligation to supply the documents under a CCA request.

 

Mick,

 

It may well be that you are legally obliged to pay the debt. You need to investigate further with the original creditor as to whether the contract was terminated. I really wouldn't want you to think that the DCA is absolutely not entitled to the money and refuse to make payment only to end up with a CCJ. Try to put the account on hold until you can find out the position with Natwest.

 

All the best

 

Zoot