Deed of assignment help needed!

[sequenci]

hi there!!

 

i'm trying to find out what provisions there are in law for a dca to provide a debtor with the deed of assigment. is it within the cca? if so where?

 

any help would be really handy!

 

best wishes,

 

seq

[sarahpp]

It isn't I am afraid and I think that the consensus is now that the dca does not have to produce this document for the alleged debtor but would need to produce it in court to prove ownership should matters progress that far.

[sequenci]

It isn't I am afraid and I think that the consensus is now that the dca does not have to produce this document for the alleged debtor but would need to produce it in court to prove ownership should matters progress that far.

 

sure, that was my thinking too.

 

i was hoping there was something that could be used to force the dcas in to proving this.

 

cheers

[sarahpp]

Sorry to disappoint. I think they only have to produce it for the court because it is deemed as being a commercially sensitive document.

 

They do have to provide a properly executed agreement (CCA requirement)

 

and

 

An up to date statement of account (to comply with the OFT guidelines)

 

but, I am guessing that you already know that

 

The original creditor however, does have to inform you that they have sold the debt on.

[lookinforinfo]

One would have thought it should be included if you were to send an sar to the previous creditor.

[sequenci]

One would have thought it should be included if you were to send an S.A.R - (Subject Access Request) to the previous creditor.

 

that is true, although alot of the client's i speak with do not have "up to" 40 days to wait. usually time is of the essence, so to speak.

[lookinforinfo]

And would that they did indeed respond within the 40 days.

 

If iit were required for a Court case, should it not be produced prior to the case when disclosure documents are required to be presented to the other side?

[sarahpp]

I don't know whether this helps/interests you or not but, I have have wondered for a while why it seems that DCAs expect us to accept the old "I will have to go back to the creditor" excuse when we are requesting agreements for assigned debts.

 

I have looked at a deed of assignment which has been sent to me. The deed clearly states that:

 

"Except to the extent that they have been performed and except where this deed provides otherwise, the obligations contained in the Agreement remain in full force and effect notwithstanding completion of this assignment"

 

So, my question is simple. If the obligations from the original agreement (for both sides) pass over with assignment, why on earth do we have to wait at all for the DCAs to obtain this document which they are already supposed to be honouring? They should already have it in their possession. This applies especially if they are threatening court action when they presumably know they will have to produce the agreement if the alleged debtor defends.

 

I have started adding this into my CCA letters where court action is threatened.

 

Not meant as a hijack - just a side issue

[Guest The Terminator]

Can I just make a point here and this is from someone on the inside looking out.I work for an LA in Housing Litigation.Now before any court cases come about betweenin the two parties(landlord and tenant) the tenant has to give a form of authority to his/her solicitor duly signed.Now thinking about it the solicitor is acting for the tenant having been given the tenants permission.Now this is no different to a DCA acting for the creditor they must have a form of authority to act.Scenario DCA writes,rings up saying they have been instructed to act for the creditor.First thing that springs to mind where's the evidence,prove that you are acting for the creditor where's your evidence knowing that eventully it's going to end up in court and the judge turns around and says where is your deed of authority as you can't prove that you've been assigned the alleged debt case dismissed that is why I don't take DCA's seriously.

[un1boy]

Surely you have the right to refuse to pay a DCA until they prove they actually own the debt?

 

So if they contact me and say we want you to pay us how ever much a month and I say, "Sorry mr DCA, until you can prove you own the debt I'm not apying" I don't see how they can force me to pay.....if someone turned up at my door claiming to be from sky, I would be well within my rights to ask for eveidence before I even conducted a conversation with him!!

 

Also, what benefit does it have if the DCA cannot provide the deed and it goes back to the creditor? I have never understood that!

[sarahpp]

Can I just make a point here and this is from someone on the inside looking out.I work for an LA in Housing Litigation.Now before any court cases come about betweenin the two parties(landlord and tenant) the tenant has to give a form of authority to his/her solicitor duly signed.Now thinking about it the solicitor is acting for the tenant having been given the tenants permission.Now this is no different to a DCA acting for the creditor they must have a form of authority to act.Scenario DCA writes,rings up saying they have been instructed to act for the creditor.First thing that springs to mind where's the evidence,prove that you are acting for the creditor where's your evidence knowing that eventully it's going to end up in court and the judge turns around and says where is your deed of authority as you can't prove that you've been assigned the alleged debt case dismissed that is why I don't take DCA's seriously.

 

The deed of assignation applies specifically to debts which have actually been sold by the creditor to the DCA. If the DCA is merely acting on behalf of the creditor then they will not have this document and it also likely that they will have to return to the creditor for a true copy of the original agreement. The purpose of asking for the deed of assignment in the CCA request is to find out who owns the debt. The original creditor has an obligation to tell a debtor when and who they have sold a debt to but, often they do not comply with this obligation.

 

You are quite correct, if the DCA has not actually bought the debt then you are not obligated to speak to or deal with them.

[un1boy]

Great, so the request is covered under the CCA request?

 

I was wondering what effect it has though if the DCA cannot produce the deed and have to 'send' the debt back to the original creditor? Surely the creditor will just sell it again?

[sarahpp]

Both the agreement and the deed of assignment are covered by the CCA request. If the DCA has bought the debt then they are obliged to supply a copy of the agreement. Some will provide Deeds of assignment and some will refuse saying they do not legally have to. If they have bought the debt they cannot pass it back to the original creditor. Therefore, if they cannot come up with the agreement (not the deed) within the statutory time frame they are effectively stuck with a debt that they could not enforce in court and have committed a criminal offence to boot.

 

If they are just acting on a creditor's behalf then they sometimes just hand the debt straight back to the creditor after the initial CCA request. The creditor is then, of course, free to assign another DCA and you would have to start the process again.

 

More often than not though, creditors do not inform debtors that they are either selling the debt or passing it to a third party for collection and this is something that they should do.

[un1boy]

Ok, thanks for clearing that up...what would happen if they coldn't produce the deed of assignment if they were meant to own it?

 

I'm surprised they don't have to provide a copy, becsue I would want to be sure they owned it, whether or not the original creditor told me they did or not!!

[sarahpp]

They would have to produce it to prove ownership in court. It is a bit of a grey area but, the correct procedure would be for the original creditor and the DCA to notify you of the sale. More often than not neither side do and the first a debtor knows about it is a threatening letter from a DCA which even then, often does not say whether they actually own the debt or not.

 

The actual deed is a commercial agreement between the original creditor and the DCA and that is why they do not have to show it to the debtor. They should however, have informed them of the sale.

 

The best idea is to concentrate on the provision of the agreement (which is again proof of ownership and has to be shown in court). For a DCA who says they have purchased a debt to have to go back to the original creditor is outrageous. They are supposed to abide by the terms of the original agreement upon purchase of the debt. How can they be doing this if they don't have the agreement in their possession?

[un1boy]

Ah, I see....I agree with what you're saying regarding the original agreement, but if they ahd the agreement and wouldn't show you the deed, could you write to them and say as soon as you've shown me the deed, I will pay out, if not take me to court?

 

The court wouldn't be happy, surely if they let it go to court knowing they had the docs....

[Richard Spud]

Regards to All

[professor yaffle]

Sorry just wanted some clarification on this. Does the original creditor have to notify you as well as the DCA?

[tifo]

If they have bought the debt they cannot pass it back to the original creditor. Therefore, if they cannot come up with the agreement (not the deed) within the statutory time frame they are effectively stuck with a debt that they could not enforce in court.

 

This hasn't stopped many of my DCAs to say they've sent it back to the creditor after i refuse to pay them because they have non-complied with a s.78 request. Its clear they 'own' the debt because they've defaulted me in their own name and have court action in their own names.

 

I assume that it is known that for a legal assignment (as opposed to an equitable assignment) of a debt to have effect so that the Assignee can sue in their/its own name, the requirements of the Law of Property Act 1925 need to be fulfilled and that the assignment is not effective until the Debtor has received a Notice of Assignment – not the date when the Notice of Assignment was posted. Consequently, should a Creditor Assignee be unable to provide evidence of service and the Defendant has not received a Notice of Assignment when proceedings have already been brought in the County Court then, I suggest, it might be reasonable to file an application for the Claim should be struck out on the grounds that Assignment has not been pleaded and that proceedings cannot be brought prior to the service of a Notice of Assignment.

 

This is the 'Cabot' argument and we are still not sure if s.136/s.139 of the LoP 1925 applies as they state they are the owner of the debt as they have been assigned the 'duties' but are not the creditor as they have not taken on the 'obligations'. So how do we pay someone who says they are not the creditor under the CCA 1974 definition (which is the Act that regulates our agreements) but we owe them money?

 

I understand that many Caboters on here are trying to prove that they are the creditor and s.136 of LoP 1925 does not support them. I have the same argument with them where they have refused to help as they say 'we are not the creditor' but you still owe us money as we took on the duties under s.136 LoP 1925, an act which does not regulate my agreement with the original creditor.

[sequenci]

 

This is the 'Cabot' argument and we are still not sure if s.136/s.139 of the LoP 1925 applies as they state they are the owner of the debt as they have been assigned the 'duties' but are not the creditor as they have not taken on the 'obligations'. So how do we pay someone who says they are not the creditor under the CCA 1974 definition (which is the Act that regulates our agreements) but we owe them money?

 

I understand that many Caboters on here are trying to prove that they are the creditor and s.136 of LoP 1925 does not support them. I have the same argument with them where they have refused to help as they say 'we are not the creditor' but you still owe us money as we took on the duties under s.136 LoP 1925, an act which does not regulate my agreement with the original creditor.

 

That simply has to be rubbish. The amount owing on the agreement even if passed to Cabot is still regulated by virtue of the type of debt it is, i.e. within the constraints of the financial limits and a D-C fixed or running account credit agreement. Has this argument gone as far as court yet do you know?

[sequenci]

I've just had a thought! Why would Cabot need a consumer credit licence from the OFT if they wish not to adhere to the act anyway.

 

 

LOL.

[Laiste]

Hi everyone,

 

Just subscribing.... What Cabot are saying is complete nonsense! When an assignment is effected, the rights and obligations pass with said assignment. A further point to strengthen arguments against assignment is applicable under the Consumer Regulations 1999. The debtor, under the original agreement has no right of assignment, which contravenes the mirror image principle. That is, the creditor under the T&C's is afforded a particular right, which is denied the debtor, which would be regarded as unfair. So it can be argued that the assignment itself is unlawful, where the same right is not conferred to the debtor also in the contract.

 

Regards,

 

Laiste.

[payingonlyencouragesthem]

Hi Laiste, some of us have been wondering if it's unfair that debtors don't get offered the chance to settle for the same amount that debt buying agencies pay for the debt. Do you think there is an angle there?

 

BTW tried to PM you but I think your mailbox is full, oh to be so popular:-)

 

Hi everyone,

 

Just subscribing.... What Cabot are saying is complete nonsense! When an assignment is effected, the rights and obligations pass with said assignment. A further point to strengthen arguments against assignment is applicable under the Consumer Regulations 1999. The debtor, under the original agreement has no right of assignment, which contravenes the mirror image principle. That is, the creditor under the T&C's is afforded a particular right, which is denied the debtor, which would be regarded as unfair. So it can be argued that the assignment itself is unlawful, where the same right is not conferred to the debtor also in the contract.

 

Regards,

 

Laiste.

[sequenci]

Hi everyone,

 

Just subscribing.... What Cabot are saying is complete nonsense! When an assignment is effected, the rights and obligations pass with said assignment. A further point to strengthen arguments against assignment is applicable under the Consumer Regulations 1999. The debtor, under the original agreement has no right of assignment, which contravenes the mirror image principle. That is, the creditor under the T&C's is afforded a particular right, which is denied the debtor, which would be regarded as unfair. So it can be argued that the assignment itself is unlawful, where the same right is not conferred to the debtor also in the contract.

 

Regards,

 

Laiste.

 

just to clarify, do you mean under the UTCCRs?

[Laiste]

Hi Poet,

 

I am not convinced that the price paid (the consideration) by a DCA is an angle that can be be pursued. Notwithstanding the Regs 1999, an assignment can be effected between two parties without the consent of the debtor, so I don't believe a Court would take into account what financial arrangement the creditor and prospective DCA enter into. IMO it is better to look at whether Notice was received of said assignment and argue the validity of it with reference to the Consumer Regs 1999.

 

I don't think it's that I am so popular, LOL, more likely attributable to laziness in emptying inbox!

 

Sequenci,

 

I abbreviate everything where possible, but yes I was referring to The Unfair Terms in Consumer Contract Regulations 1999.

 

Regards,

 

Laiste.