Re: Assignment of debts to DCA's

[InKogneeToh]

Hi all

 

Whilst trying to get off to sleep last night (y'know how it is!) I started thinking about the debt assignment issue. I don't know if this has already been discussed in the forum as there are sooo many threads but here's my opinion for what it's worth -

 

Many DCA's tell our members that they have bought a debt from a creditor. The question is, have they bought JUST the debt or have they bought the credit agreement also. If the former, my opinion is that they are not entitled to take any enforcement action e.g. default issue, or sue for repayment as they are not the creditor and do not have the rights conferred by the CCA 1974/2006.

 

If they have bought the entire agreement, surely they should have received a copy of it as part of the formal assignment and therefore could quite easily send a copy to any one of us who has requested it!!

 

The fact that so many DCA's appear to have to contact the original creditor for a copy of the agreement leads me to think that in those particular cases they have bought only the debt and therefore do not have a contract with the debtor that they could legally enforce anyway! Plus most DCA's seem to be avoiding complying with deed of assignment requests - surely a deed of assignment is a necessary part of buying an entire consumer credit agreement because it would confer the rights under the CCA to the new owner and if they have these rights why aren't they proving it by sending copies of the legal document to us??

 

What's your opinion?

 

Regards, Pam

[tifo]

my own thoughts 100%

 

i have done a lot of CCAs this month and the only letter i get is 'we will ask our client for this information', even when they have evidently bought the debt!

 

in my follow up letter, i am asking them that if they have bought the debt (as they are claiming and also they issued a default on my file) then why do they need to ask 'their client' who is not really a client?

 

i don't know about this issue of buying only the debt or the whole agreement, as only buying the debt makes no sense because they can only ask for the money back if they buy the whole agreement.

 

you raise a very interesting point.

[InKogneeToh]

In my opinion, DCA's could only issue defaults if they have been assigned the entire agreement ( and therefore the rights and remedies under the CCA) and not if they've just bought a debt - there would be no contract to enforce if they have. I would write and ask them why they think they have a right to issue a default and if they can't show clear evidence of a deed of assignment of the entire original agreement/contract I would threaten them under Data Protection Act for causing you damage to your credit rating. I would also write to Credit reference agencies and ask for them to investigate the entry with the DCA.

[PriorityOne]

It also follows that... if a person has no contractual agreement with a DCA, then the monies obtained by that DCA will have been obtained unlawfully and can be pursued through the courts.

[InKogneeToh]

tifo,

 

In one of your other posts you have been discussing Lowell Financial - do you have issues with this particular company?

 

The reason I am asking is because my hubby has lately received a few letters from them regarding a very old Barclaycard debt, which we have so far ignored.

 

Have you been defaulted by Lowells? My hubby was defaulted by B/Card in 1999 and this has now dropped off his credit file as 6 years have past, although he was paying a different collection agency until 2002 ( so limitation period not yet actually up until 2008). I'm concerned now that Lowells will (or already has) defaulted him again.

 

My understanding is that only one default can be issued against any one agreement, and then only by a creditor or legal assignee of the original contract.

 

Have you challenged the default in any way yet?

 

Regards, Pam

[SHERLOCK]

Having had recent contact with DCA after debt has been assigned, they do go back to the original creditor for the statements etc (never it seems, the original copy of agreement though ) when issued with a CCA request.

 

One good thing to come out of this is, as I am doing, you can claim the refund of charges from the original creditor without it being taken from the debt amount (I cannot confirm this as yet, as my claim from RBS is ongoing) Then you can offer this amount to the DCA to clear the debt!!

 

MADNESS I KNOW, SEE HOW WE GO

[PriorityOne]

One good thing to come out of this is, as I am doing, you can claim the refund of charges from the original creditor without it being taken from the debt amount (I cannot confirm this as yet, as my claim from RBS is ongoing) Then you can offer this amount to the DCA to clear the debt!!

 

MADNESS I KNOW, SEE HOW WE GO

 

But... if the DCA cannot produce a CCA or Deed of Assignment and cannot prove their right to collect... and you have been paying for X amount of years, you should be able to claim monies back from the DCA.

 

I also cannot confirm this as yet, as mine have only recently defaulted. I am waiting for them to commit a criminal offence before I proceed... ;-)

[InKogneeToh]

Has anyone actually been taken to court by a DCA and had an actual hearing to enforce one of these debts they have bought? I would like to know if any DCA has been successful and what evidence they presented.

 

Regards, Pam

[PriorityOne]

Very unlikely for them to proceed with court action without any documentation, although it has been known for proceedings to start as a scare tactic to force a person into coughing up...

[SHERLOCK]

on my occassion they produced the statements only, I had already received the Deed of assignment.

 

When I reclaimed charges, the creditor claims to legally have to refund to the DCA.

This is being questioned and they have to show me the legalities for this action, have left claim open pending payment to myself.

I would love to see the contract between creditor and DCA!!

 

MAYBE ITS BEST FOR THE DEBT TO GO TO DCA?

[PriorityOne]

It would seem to have some advantages for the debt to be bought by the DCA.... after finding out your rights of course. People say "what goes around comes around".

 

Is there such a thing as a contract between creditor and DCA ? If not, maybe in your case Sherlock, you could argue that there is no contractual obligation for the charges to be paid to the DCA ....

[dhoom]

PLEASE DO NOT LAUGH AT THIS

 

Wouldn't it be nice if we could get together and buy out a few DCA's, This will allow us to buy our disputed debts at a fraction of the cost and also have control of what we register at the CRA's.

[tifo]

In one of your other posts you have been discussing Lowell Financial - do you have issues with this particular company?

Yes, i have 2 debts with Lowell, one quite old and one Capital One which they seem to have bought a load of recently. They have recorded a default on my credit file. I'm just starting to go through the verification processes with them to start with.

 

You are right that you can only have one default for one account, but this is only one at a time. When the bank sells the debt, they have to remove their default and the debt agency then issues their own.

 

Has anyone actually been taken to court by a DCA and had an actual hearing to enforce one of these debts they have bought? I would like to know if any DCA has been successful and what evidence they presented.

I have been taken to court 3 times now over different debts and received CCJ's. I did not see any documentation as proof nor did i ask for any, as i assumed they had a right to chase me (i was naive last year and the year before). Only had 2 hearings. The DCA did not turn up on one so i got my payment proposal OK'ed, but i had a very bad judge on the other one and he gave them a charge on my property despite the first issue being my payment proposal.

 

I am now chasing all my DCA's and if they cannot prove the debt i will have to think how to have the court remove my CCJ's. Can anyone advice?

[Laiste]

Hi everyone,

 

I have read the comments made so far with interest. Where a DCA purchases a debt from the original creditor, they have conferred upon them, the rights, duties and benefits under the original contract. A creditor can legitimately transfer/assign the debt to a third party. In my opinion, the reason DCA's are not forthcoming with documents and have to refer back to the creditor is that when they buy a debt they probably do not envisage anyone challenging them!

 

Think about it, most people panic terribly when they receive a nasty,vile letter from a DCA and can't come to an agreement quick enough with these parasites! So its hardly surprising that they don't have all the paperwork, they won't ask for it, their only objective is getting the debt paid! Most people are too intimidated to start questioning the legality of them collecting the debt and requesting paperwork is probably not uppermost in people's minds! It should be, absolutely! As far as I'm concerned if you have no proof to back up your assertions/threats, one, you can sod off and two, you'll find yourself on the receiving end of a court claim for compensation for harassment and other breaches of the law! Courts require evidence for everything! I have been going through two lengthy legal battles and what you can't back up with evidence is meaningless!

 

I am currently looking at the assignment of debts, to see if I can drive a tank through the actual assignment itself. The law of assignment is a specialist area and I want to see if the actual assignment itself can be challenged as being unlawful for whatever reason. I don't know what grounds they might be challenged on, but I've just ordered a book that has cost me £65.00:o all about the law of assignment to find out! I've also started studying law, so I'm going to be a bloody pain in the a**e to banks, c/c's and DCA's for a long time to come!

 

Laiste.

[InKogneeToh]

"You are right that you can only have one default for one account, but this is only one at a time. When the bank sells the debt, they have to remove their default and the debt agency then issues their own."

 

I'm sure I have read somewhere that only one default can be applied to any one account EVER - can't remember where it was though so will have to trawl through my saved docs/links etc.

 

The thing is that only one default notice is needed to allow enforcement action to be commenced and therefore a DCA buying the debt from a creditor who has already issued a default (if, of course DCA has actually bought rights and remedies also) would know that they don't need to issue another - wouldn't they??

 

It all seems a bit odd to me - DCA's having to contact original creditors for copies of agreements and (in some cases I have seen on here) issuing defaults on top of the creditor's current ones.

 

Either, as has been suggested, they have been really complacent in becoming an assignee under a CC agreement in the belief that we, the ignorant masses, have not got sufficient grey matter to work out what our rights are,

 

Or, they have not bought these debts as true assignments of the credit agreements themselves ( with all rights and remedies included) and can ONLY rely on bullying tactics to squeeze as much cash out of us as possible!

 

It seems very strange to me that many DCA's who claim the right to recover a CCA debt spend so much time, money and effort into coercing us to pay up. If they have the same rights as the original creditor why don't they just go straight to court if 1 or 2 threatening letters have not produced a result? After all, if they have previous payment/account history (presume assignment would include this) they can easily show the court that the debtor has been given ample time to pay!

[PriorityOne]

Hi everyone,

 

I have read the comments made so far with interest. Where a DCA purchases a debt from the original creditor, they have conferred upon them, the rights, duties and benefits under the original contract. A creditor can legitimately transfer/assign the debt to a third party. In my opinion, the reason DCA's are not forthcoming with documents and have to refer back to the creditor is that when they buy a debt they probably do not envisage anyone challenging them!

 

 

Hi Laiste

 

Isn't the original creditor meant to ask your permission first though (Data Protection Act), before selling your data on to a third party ?

[InKogneeToh]

That's a very good question - what does the DPA actually say about this type of situation?

 

Also, how do you get quotes to appear in boxes as above PriorityOne - I'm a bit thick when it comes to this technical stuff!

 

Regards, Pam

[Laiste]

Hi PriorityOne and 1706!

 

You certainly get around on this forum Priority! The creditor doesn't need to seek your permission to sell the debt to a third party. You'll probably find that there is something in your contract with the creditor that covers this. That said, law being the peculiar subject it is, there is nothing to say that their actions would not constitute a breach of the Data Protection Act. You do get laws conflicting with each other, the first place to start would be the contract to see what it states. Don't assume that it will have been drawn up correctly to exclude liability under the DPA. We all know banks and c/c's are famous for their screw ups! Scrutinise and question everything! As they say, the devil is in the detail!

 

I'm a bit thick like 1706 (joking) I don't know either how to put quotes up from messages!

 

Laiste.

[PriorityOne]

Also, how do you get quotes to appear in boxes as above PriorityOne - I'm a bit thick when it comes to this technical stuff!

 

 

Just go to the post you waant to quote from and click "quote"... delete the bits you don't need, but remember to leave the bit in brackets at either end that conatins the word "quote"...

 

Hi again Laiste,

 

It is true, I have wandered around the forum quite a bit over the past week.. always end up where I belong though, on Debt Row...

 

I have read several posts that say that the original creditor needs permission to sell data on... or pass data on, so am confused over this bit. I am anxious to get it right before sending my own letters off. Two of mine defaulted on the CCA request on Friday. One of them is a seperate DCA and the other is an in-house DCA... both for the same creditor, but different accounts/times, etc. However, the in-house DCA is not registered with the IFO, which I have been told is quite serious for them.

 

Going back to the selling of debts though, if a DCA is unable to comply with a CCA request, does it then become unlawful for the passing of data between companies in the first place... because the documents cannot be produced by the DCA upon request, within the legal timeframe ?

 

This is such a headache !

 

Will try and get back on here later.... need to go to Tescoes...

[tifo]

I'm sure I have read somewhere that only one default can be applied to any one account EVER

 

I have also read somewhere that only 1 default can show for 1 account at any 1 time, hence my response to you. The reason the debt agencies issue their own default is so that the debt shows as being due to them. They can only do this IF they buy a debt, complete with all agreements and rights. At that time, the bank removes THEIR default because they no longer legally own the debt. Hence only 1 default will show for 1 account. It is correct that the debt agency can then NOT issue another default, but they will keep updating this at intervals, therefore showing the actual amount outstanding at that time.

 

Also, how do you get quotes to appear in boxes as above PriorityOne - I'm a bit thick when it comes to this technical stuff!

You can click the 'quote' button that is shown in the relevant post, or insert quote [within square brackets like this] at the start of the text and then /quote [within square brackets like this] at the end and that part will then be boxed.

[InKogneeToh]

Re: the link I PM'd you yesterday -

 

I'm sure that what this is saying is that only one default can be issued on one debt! If a creditor has removed the original default so that the DCA can enter one then it certainly looks as though the new entry should date from the original default date and not from the date entered by the DCA.

 

Further opinions needed please so I have included the link to the web page :

 

Caledonian Express, UK - Credit, Loans and Banking : Mortgages, Remortgages, Loans (secured and unsecured), Car Finance, Credit Cards, Bank Accounts

 

Also many thanks for yours and PriorityOne's advice on adding quotes to posts.

 

Regards, Pam

[tifo]

hi,

 

you are also right in your thinking, but i am only going by what has been stated in this forum as well as what has happened with my own credit files.

 

the way i see it, again, is that, for example, you defaulted on the 1st Jan 2007 with ABC bank after they have sent you a letter with a notice of intention to register as a default in 28 days. This would show on your credit file as 'defaulted 1st Jan 2007, ABC bank, £xxxx etc'. It stays like this although they can update it and the 'last update' will show this date.

 

ABC bank then sell the debt to ABC agency on 1st June 2007 and you receive a letter of assignment.

 

ABC bank will remove their default issued on 1st Jan 2007 as they no longer own the debt.

 

ABC agency will issue their own default, say, on 1st July 2007 and your credit file will state 'default 1st July 2007, ABC agency, £xxxxx etc'.

 

The default from ABC bank on 1st Jan 2007 is no longer there.

 

This means that at any time you only have 1 default for 1 account.

 

Comments welcome if i have got it totally wrong, in which case i would need to chase a lot of DCA's from my credit file!

[tamadus]

Hiya folks

 

1706 asked me to take a look at this thread, and I do have some ideas to put forward but I need to get something done at the moment so I'll post in more detail later today

[lookinforinfo]

A DCA who has bought the debt becomes,under the terms ot the Consumer

Credit Act 1974, the creditor, as confirmed in the "definitions" section of the Act.

viz "Creditor means the person providing credit under a consumer

credit agreement or the person to whom his rights and duties under the

agreement have passed by assignment or operation of law.

 

The act of assignment is sufficient for the DCA to acquire the legal rights to

all the standard terms in the original agreement. There is no mention in the Act that they have to also possess the original agreement or a copy

of it. Bear in mind that some of these DCAs may bulk buy a large number of

debts in one go, and although we now know, thanks to this forum, that we

can make a CCA request, the vast majority of those debtors will not ask for their copy.

And because so many of the debts will be uncollectable anyway, for various

reasons, the DCAs may feel that there is little point in amassing piles of

agreement copies when only a small proportion of debtors will actually ask for their copy.

 

PS There is no stipulation in a CCA request for the creditor to supply

the deed of assignment.

[InKogneeToh]

Hi,

 

Yes I absolutely agree with what your saying about an assignment transferring all rights etc. to the new owner of the agreement - but the Act also says that the new owner inherits all the creditor's responsibilities as well - e.g. responding to requests from debtors, sending statements etc.

 

I'm just not convinced that all of these 'bought' agreements have been assigned properly since I have yet to read on this site of a member who has actually received a copy of a deed of assignment after requesting it.

 

Since disclosure of this document would prove a DCA's right to enforce a credit agreement (only in cases of course where they can provide a copy of the agreement) then why are they not prepared to disclose??

 

Very fishy me thinks!

 

Regards, Pam