Re: Assignment of debts to DCA's

[lookinforinfo]

I don't think it fishy at all.

If the DCA has received a CCA request, then in order to be able to enforce the debt, only a properly executed copy of the original agreement, plus any

other relevant documents will suffice. Sending any number of copies of the assignment deed will do nothing to comply with the cca request. And bear in

mind that even though they will have the deed, locating it may be time consuming and expensive. So why should they bother?

As I understand it, the only time the assignment needs to be produced is in Court.

[Laiste]

Hi 1706,

 

I have a deed of assignment from a Company called IND. They have recently bought a debt from Barclaycard and have started legal proceedings against us. When we did the CCA request they included the deed along with a copy of the agreement. So we are about to have some fun with this load of cretins.....!

 

Regards,

 

Laiste.

[InKogneeToh]

Sorry to hear that they have come up with the goods in your case!

 

Don't forget to check the agreement for any discrepancies though - the OFT have documents detailing all that should be on both cancellable and non-cancellable agreements (depending on whether it was signed on or off trade premises). If you find anything wrong it might mean that the court will have a discretion whether to allow enforcement or it may not be enforceable at all.

 

Regards, Pam

[XXneilXX]

hi,

 

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.

 

So if this is correct then your default, for one debt, will be on file for longer than 6 years. I thought that there was a legal time limit. Theoretically you could have a default on file for ever (if the debt is sold and re-sold, etc).

[Laiste]

Hi 1706,

 

Well they have come up with goods, albeit dodgy ones!

 

I am well versed in dissecting the form and content of credit agreements and what constitutes a valid contract. I have a lenghty counter-claim against them and I'm more than ready for a fight! That's why I said we would be having some fun with this Company! If they thought we would acquiesce just because they have issued a claim, they really are in for a shock! I'll keep you posted.

 

Laiste.

[InKogneeToh]

This is exactly why I think only one default can be registered - if it is somehow felt necessary for the new owners of the debt to have the default in their names then it must still have to be dated from the start of the original entry - i.e. the creditor removes their entry - DCA files theirs, but only from the original date!

 

But if the debt has been correctly legally assigned then I don't see why the default info needs changing at all - the creditor had the right to enforce - so the DCA inherits that right by assignment - don't they?!

 

The link I added in post 21 certainly seems to support the legal time limit theory and that re-applying a default is contra to data protection law.

 

Regards, Pam

[InKogneeToh]

Laiste

 

Good for you - go get 'em!!

[themadcap]

but does this still mean that if the DCA does not hold a copy of your CCA the debt is unenforceable?

 

cheers

[InKogneeToh]

but does this still mean that if the DCA does not hold a copy of your CCA the debt is unenforceable?

 

cheers

 

Not sure what bit of my posts you're referring to but if it's the bit about DCA inheriting right to enforce from original creditor without need to file new default then YES - if the DCA has bought the debt but can't produce an executed copy of the original agreement then it doesn't matter how many defaults they register in terms of enforcing it - no agreement - no enforcement.

 

If they have registered a default but not produced the copy agreement then I think you can launch an attack under Data Protection law to get them to remove the default(s). It requires a bit of persistence it seems, judging by experiences of some members but there's loads of info on this site help with matters such as this.

 

Regards, Pam

[lookinforinfo]

Laiste, I dare say you already know, but to comply with the a CCA request

you should have been sent

 

1] the executed agreement -that is all the pages, and there should be your signature and a signature on their behalf in the signature box.

2] if there are any documents mentioned in the agreement [the T&Cs for instance] then they should be included.

3] a signed statement by the creditor saying how much you have already paid; the amount payable that remains unpaid and how those amounts are made up and when they had become due; the total amount still outstanding

and whatever payment plan is in effect with the due dates listed.

 

If they haven't sent you that, they have not yet complied, despite sending the deed of assignement that is useful to you, but does not form part of the request.

[MARTIN3030]

There appears to be a wealth of questions being asked here.

All of these questions have been discussed and answered in great depth over the months.

As some users will have noticed there have been a few changes lately and the main one being the introduction of the Debt Action group which recognises the need to further strengthen this sites ability to address all areas of debt,including collectors and Baliffs.

We believe in having information available that is clear concise but above all authorative this enables a fast response to issues that demand clear methods of the handling process.

In April 2007 compliancy/complaints handling of the consumer credit act 1974 and ammendments of 2006 will fall within the remit of the Office of fair Trading.

They are not able to act before this date but have pledged to be as informative as they can in the interim period.

It is anticipated that many of the questions that are frequently asked,including many in this thread,will have definitive answers from the OFT.

This will then leave site helpers and mods to concentrate on widening the knowledge base yet further and make answers available. plus template letters to meet the host of actions needed to address the many areas that are needed.

It should hopefully make for the best debt advice on the internet.

Of course your feedback and postings are very welcome, especially where these are seen to be backed up with legislation and codes of practice to pursue compliance/uphold the law.

[InKogneeToh]

Hi Martin

 

Please accept my sincere apologies if I have started a thread that has caused problems or confusion.

 

I am seeking some answers on specific subjects but this site is now so big with zillions of threads and it's a bit difficult to trawl through them all to find relevant input.

 

If I have posted anything that is incorrect or bad advice then I apologise to all.

 

Regards

 

Pam

[InKogneeToh]

Mornin' tamadus

 

I've just noticed you're back online and I'm itching to know what you have to say about defaults.

 

Gonna spill the beans then?

 

Regards, Pam

[tifo]

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

the deed of assignment.

 

You are correct. I would assume this is because the deed contains sensitive business information that can be of value to the DCA competitors (i.e. how much they buy their debts for). I have read a thread on here explaining this and that they will be obliged to provide it only by a court order, so if they take the debtor to court, then ask to see it. It may be that only the judge will be allowed to see this and confirm it exists.

 

Originally posted by XXneilXX

So if this is correct then your default, for one debt, will be on file for longer than 6 years. I thought that there was a legal time limit. Theoretically you could have a default on file for ever (if the debt is sold and re-sold, etc)

It means your default will be on file for a maximum of 6 years from 1 creditor only. Before it is due to expire it may be sold. This is why a lot of DCA's are chasing people with 5 year old debts. I suppose they buy these a lot cheaper as well. Again i may be wrong so someone correct me if they think so.

[SHERLOCK]

Studio cards stated in reply to my CCA request that they would only provide a copy of my agreement if they took me to court for the debt

 

I have made a claim for recharges, judging by above I should also issue a non-compliance??

[tifo]

Studio cards stated in reply to my CCA request that they would only provide a copy of my agreement if they took me to court for the debt

 

I have made a claim for recharges, judging by above I should also issue a non-compliance??

 

This confirms my reply above about DCA's only supplying an agreement (or wanting to) to the court.

 

I don't know about non-compliance, as there doesn't seem to be much we can do against that.

[tamadus]

Ok please forgive me if this gets long or I miss anything out

 

Fisrt I notice Sherlocks post about studio cards refusing a copy of the agreement.

 

Sherlock, they are legally bound to supply a copy of the credit agreement under the CCA sec 77-79, it should include the aigned agreement and any document mentioned it it, namely terms and conditions. The requests should also produce a signed statement of the account giving details of amount owed, payments to be made etc etc. This shoiuld not just be a list of payments previously made.

 

NO court order is needed for this. Failure to supply after 12 working days means they are in default and the agreement is unenforceable until they remove the default, a further month and they commit a level 4 offence punishable by a £2500 fine and/or 3 months in prison.

 

Ok Back to defaults, The CCA is very specific regarding the issuing of defaults. They can only be recorded if the correct proceedure has been followed, namely sending notice of the breach and how to rectify it. If they fail to follow the proceedure then the default is recorded unlawfully and you have a case for removal.

 

As we all know these companies rarely follow proceedure and I suspect a large amount of defaults are recorded unlawfully. First thing is to ask for copies of the default notices, most do not keep these as there is no legal requirement, however I suspect they could easily create a copy. However if it came to court the onus of proof is on them to prove they sent it and they rarely if ever use recorded mail so that would be difficult. Producing a letter and saying it was posted does not constitute proof.

 

This thread is correct in that only ONE default can exist per account at any one time, if the debt is assigned to a DCA then the original default has to be removed before the DCA can put another default in place in their favour. This is where I have difficulties as the DCA never send default notices as the CCA dictates. so in my opinion, most if not all defaults recorded by a DCA will be unlawfully applied. This action by the DCA's is something I am currently in the middle of challenging so I dont want to let too much about my tactics out just yet, but will post fully as each stage is resolved.

 

I would say get regular copies of your credit file from all the CRA's. This is so you know what they are doing behind your back, as the DCA will not tell you they have recorded a default.

 

Getting a default removed will always be a battle as they hold them in very high esteem and admitting it was wrongly recorded is totally beyond them. Also don't accept their claim that it can stay on file for 6 years. That is only an industry standard they decided and there is NO statute that allows it.

 

A default should only stay in place for a 'reasonable' period of time once the account is closed/settled. The only things that legally stay on your credit file for 6 years are items ordered by a court like CCJ, IVA or bankruptcy order.

 

Hope I made some sense

[tamadus]

Ooops I missed something,

 

Dca's are reluctant to supply copies of deed of assignment as often these are not individual documents but contain details of multiple debtors. They therefore use the Data Protection Act as a defence to supplying it.

[elsinore]

This thread is correct in that only ONE default can exist per account at any one time, if the debt is assigned to a DCA then the original default has to be removed before the DCA can put another default in place in their favour.

 

Of course tam, that's what should happen. But there are many of us with two defaults registered for the same debt, probably because the original lender forgot, or couldn't be bothered, to remove theirs before selling the debt on. That then creates twice the amount of work getting both defaults removed!

 

Elsinore

[InKogneeToh]

Thanks very much for that tamadus and good luck with your challenge on this matter.

 

The thing I have a problem with is where members are saying that they have been defaulted by a DCA when a creditor has already previously defaulted them (and this first entry may or may not have been removed).

 

My understanding is that the DCA's are entering the date of default as the date they file their notice with the CRA which can often be several years after the original one was filed by the creditor. This means that a default could literally run on for years, especially, as remarked upon by another poster above, these debts sometimes get sold on more than once.

 

A prime example is my hubby's case - he had an old debt with barclaycard which was defaulted in 1998. This was then sold to Robinson Way, to whom he continued making payments until 2002 then stopped (some debt still owing).

 

The creditor's default dropped off the CRA files after the 6 years had past i.e. 2004. But if DCA's are effectively re-registering defaults then he could have had one filed by Robinson Way and now again recently by Lowell Financial who have just tracked him down after a further 4 years. We have not responded yet to Lowell but have also not yet checked the CRA files for new defaults for the same debt. The webpage link below supports my argument that there can only be one default per debt EVER - not just at any one time!

 

Can you have a read and see what you think please?

 

Many thanks, Pam

 

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

[SHERLOCK]

Studio have a default on file, and state in a letter to me that they will only supply the agreement if basically I refuse to pay and they take me to court.

They have supplied statements which show a debt exists (their words).

 

What letter do I now send to make them comply, or do I just leave it and in 42 days'ish from CCA request APPLY TO GET THE DEFAULT REMOVED?

 

SHERLOCK

[elsinore]

Studio cards stated in reply to my CCA request that they would only provide a copy of my agreement if they took me to court for the debt

 

 

Ask them why, Sherlock. (But don't expect a sensible answer!)

 

Elsinore

[SHERLOCK]

IS IT COZ THEY HAVEN'T GOT ONE

[InKogneeToh]

Hi Sherlock,

 

Have you done a CCA request to Studio for a copy of this agreement and was it definitely of a type which would come under the CCA 1974?

 

Update - Have now read some of your other posts and see you have done a CCA request but are you sure it was a CCA agreement - I didn't know Studio did these!

 

If so how long ago did you send it?

 

Regards, Pam

[SHERLOCK]

http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/56752-sherlock-studio-08-01-a.html

 

COPY OF LETTER HERE