HFC Marbles Card Charges Reclaiming

[tifo]

As I type it I will add more

 

Thanks .....

[tifo]

Isn't a letter to the debtor to notify them of the assignment only requried to change the assignment from equitable to absolute.

 

I would think it is to notify them of the change in absolute ownership of their debt?

 

A bank would not need to notify the debtor if an equitable assignment is done in order for the DCA to collect a debt. Or i think.

 

Of course, with Cabot there seems to be a mixture of equitable/absolute assignment but usually its either one or the other.

[tbern123]

There is an entire section within one of Sales Agreements (Deed of Assignment)

Repurchased and Recalled Accounts

25. The Seller will notify the Buyer’s Servicer of accounts it wishes to recall on an ad-hoc basis. This notification should provide the minimal level of detail agreed operationally. Accounts notified by the 1st of each Month will be included in the Buyer’s Servicer’s monthly submission.

26. The Buyer’s Servicer will obtain reasonable evidence that an account is eligible for repurchase, and make this available to the Seller on demand.

27. The Buyer’s Servicer will submit a monthly list of accounts for repurchase / recall on the date of each months fresh purchase (usually between 25th and 28th). The Seller will review this list and agree with the Buyer’s Servicer within 5 working days the final list of accounts to be repurchased / recalled.

28. The Seller will forward reimbursement to the Buyer’s Servicer for the cost, without deduction or withholding , of each months agreed list of recalled and repurchased accounts to arrive no later than the 25th of that month

[tifo]

thanks Tbern, i have this from you already.

 

but, in law there would still need to be an absolute assignment of the debt to the buyer (the bank) and that agreement is only valid between the bank and DCA, to which the debtor is not a party. Their contract is not the law, no matter what they want to think.

 

if my debt was sold under legislation, a private agreement between the bank and DCA cannot re-assign it. It would have to be done within legislation again.

 

I'd like to see them bring that private contract to court as proof of their ownership .... i'd say, but Judge Sir, it's not the law, is it?

[tbern123]

thanks Tbern, i have this from you already.

 

but, in law there would still need to be an absolute assignment of the debt to the buyer (the bank) and that agreement is only valid between the bank and DCA, to which the debtor is not a party. Their contract is not the law, no matter what they want to think.

 

When you sign the agreement (I will use Citi as an example) you agreed that they could assign their rights under the agreement.

 

One of those rights, is the right to assign. Is there anything to prevent the right to assign from being assigned ?

 

You could argue that the DCA cannot assign the account back as they can't prove ownership of the account. If the DCA can't prove they are the owner then the OC must still be the owner

[JonCris]

The point that I'm trying to make is whilst the bank may have the right under common law to assign the debt 'without' the consent of the debtor they don't now have the right to then REassign it back to the bank without the debtors consent.

 

If they do & any action be the buyer (DCA) has already failed then that failure is also REassigned

[tbern123]

You know far me on this to be honest JonCris, I am just thinking out loud and working through ideas.

 

But isn't that right given when you sign the original agreement agreeing that the Bank has the right to assign it's rights under the agreement and that the right to assign is one of those rights that has been assigned ?

[JonCris]

Yes but if there is no enforceable, valid agreement........what exactly has been assigned.....now't....IMHO it's all been a worthless exercise in paper shuffling

 

In other words the DCA has purchased a pup & even if passed back to OC it's still a pup

 

For example if I assign property then it's usually something physical which cannot be disputed but for a debt to be assignable it must be valid

[tbern123]

Once the account has been reassigned to the original creditor, would refunding charges to the account be deemed as enforcing the debt ?

 

As they are not seeking to collect payment directly from the customer

[tifo]

But isn't that right given when you sign the original agreement agreeing that the Bank has the right to assign it's rights under the agreement and that the right to assign is one of those rights that has been assigned ?

 

Yes, that right has been assigned to a DCA. Bank out of the agreement.

 

For it to go back to the bank, the same applies to the DCA, i.e. it must have the right to assign its rights under the agreement .... if it had a valid agreement. All i ask is to show me that agreement.

 

Of course, if i'd done a CCA request to the bank before it sold the account, the same arguments would apply to them that now do to the DCA, i.e. show me the agreement which allows you to data process and assign etc. Most banks at this stage write off the account in full.

 

But mine got sold years ago and these kind of sites only came later, hence DCAs in the loop.

[tifo]

In other words the DCA has purchased a pup & even if passed back to OC it's still a pup

 

Yep, it remains a lemon no matter where it is squeezed.

[tbern123]

Yes but if there is no enforceable, valid agreement........what exactly has been assigned.....now't....IMHO it's all been a worthless exercise in paper shuffling

 

Would I be wrong in thinking that even though the debt is not enforceable it still exisits.

 

The creditor is just prevented from taking steps to enforce the debt, i.e seek repayment from the debtor.

 

However, would a refund back to the account, from which the charges were originally applied be deemed as enforcement.

[tbern123]

As the debtor may have only signed T's & C's permitting the transfer from the OC to another they may not have agreed to the reversal - once sold it's sold Any indemnity offered by the OC is a matter for those 2 parties & NOT the debtor

 

I thought that a debtors consent for a debt to assigned was not required as it would not prejudice the debtor. Thus even if he/she did not give consent for the account to be assigned back to the bank, it could still be done

[JonCris]

Yes it still exists............but unless there is a valid enforceable agreement there is no alternative remedy in common law for the debts recover......For that I refer you to Wilson- v - First County

[tifo]

but unless there is a valid enforceable agreement there is no alternative remedy in common law for the debts recover......For that I refer you to Wilson- v - First County

 

Exactly. If there is no agreement then the debt can be seen as an unrepayable gift to the debtor and if there is an agreement but not fully valid it is unenforceable. It still remains a lemon.

[JonCris]

I thought that a debtors consent for a debt to assigned was not required as it would not prejudice the debtor. Thus even if he/she did not give consent for the account to be assigned back to the bank, it could still be done

 

The debtor has agreed to the assignment of the debt either by default or contract by the OC to another......but they have not agreed.......nor does there appear to be any provision in CL for the debt to be reassigned without consent

 

The right of reassignment appears to be simply a contractual agreement between only 2 participating parties

[tbern123]

Sorry the point I am trying to make is if the bank reopened the account that the charges were applied to and refunded those same charges to the same account. Could this be deemed as enforcing the debt ?

 

As the charges are being refunded back to that account on the basis that they should never have been applied in the first base. So in reality all the bank would be doing is restoring the account to it's status without the charges

[tifo]

However, would a refund back to the account, from which the charges were originally applied be deemed as enforcement.

 

if the bank is no longer the legal creditor then they have nothing to enforce and nothing to refund back into, hence my long standing argument that the refund should be paid directly to the claimant and not an outside third party.

[tifo]

Sorry the point I am trying to make is if the bank reopened the account

 

back to square one, how would they re-open a sold account?

[tbern123]

if the bank is no longer the legal creditor then they have nothing to enforce and nothing to refund back into, hence my long standing argument that the refund should be paid directly to the claimant and not an outside third party.

 

But if the debt was reassigned to the Bank, they would be the creditor

[tbern123]

I agree with tifo

 

If they have disposed of the debt for a consideration they have effectively relinquished all rights & responsibilities over that debt. - For them to now have any right of recovery there needs to be a reassignment of the debt back from the DCA to the OC otherwise they have no right to try & enforce the debt

 

You can't sue off the back of another it's called Champerty & ain't allowed

 

Would it be the case that if the account was reassigned to the bank, champerty isn't really a consideration and in itself it could not prevent assignment on the basis that the debtors permission is required?

[tbern123]

back to square one, how would they re-open a sold account?

 

Slightly confused by the question. When account is sold it is still on the OC computer systems and they will retain a record of the account for upto 6 years.

 

For example, if your account was sold say 12 months ago, you could still go into a branch today and they would be able to bring up the account, even if it is closed.

 

As a result, the inhouse collections department could reopen the account, apply the refund then close the account again.

[tifo]

Slightly confused by the question. When account is sold it is still on the OC computer systems and they will retain a record of the account for upto 6 years.

 

I meant they could only if they had an absolute assignment to them.

[tifo]

But if the debt was reassigned to the Bank, they would be the creditor

 

We're going round in circles

 

The DCA would need a valid agreement to be able to assign their rights to another. If they have none, they assign a lemon. If they haven't been able to supply one against a lawful request, any further action (such as reassignment) is not valid until they are no longer in default. It's against legislation and OFT guidelines.

 

In their own assignment, the bank has given up all rights, benefits and obligations of the account to the DCA.

[tbern123]

We're going round in circles

 

The DCA would have to have a valid agreement to be able to assign their rights to another. If they have none, they assign a lemon.

 

That argument has one serious flaw and that if there is no valid agreement the bank should not have assigned the account to the DCA.

 

Wouldn't this make the original assignment to the DCA null and void ?

 

Thus the OC retains the account anyway