DCA refuses to provide Deed of Assignment and can't decide how much they are owed.

[Typhoon]

Posted this in another section and got no response. A bit of a complicated situation here but I'll try to explain as best I can.

 

I had a loan with GE Capital Woodchester on which I had made payments up until I took out a Debt Management Plan with Payplan over a year ago. Payments were made to all of my creditors on time every month but GE Capital Woodchester decided to sell their debt to a company called Asset Link Capital (No. 1) Limited. GE claim they sent me a letter to that effect but I did not receive any letters from GE or Asset Link. A few months ago I received a letter from McClure Naismith solicitors claiming that I owed their client (Asset Link) a total of just over £9000. This figure could not have been possible as I had made payments totalling £2250 to the account over a period of 14 months and the initial amount borrowed was only £8450, £550 less than what they claimed I owed them.

 

I initially disputed the amount owing and requested a true copy of the credit agreement which they provided inside the timescale set out in the CCA 1974. On consulting Payplan, they said I owed roughly £8.5k but that this figure also included charges applied by GE Capital Woodchester. I provided this figure to Asset Link's solicitors and they then claimed that their records reflected this and that the figure was correct. Shortly afterwards I decided that I would not be held responsible for fees and charges illegally placed on the account by GE Capital Woodchester. I informed Asset Link's solicitors of this and requested a copy of the deed of assignment. They sent me back a generic Deed of Assignment that doesn't contain my name or any other details, it doesn't include the amount owed and there are a couple of sentences blacked out with a marker pen. They also said that the Deed of Assignment bearing my details would not be sent to me as it contained the details of other debtors. They now claim that the Deed of Assignment is for a total of £7150.

 

I'm starting to believe that Asset Link were attempting to profit by deception, ie. they said I owed almost £2000 more than their Deed of Assignment (if they actually have one) is for and have given me 3 different total debt owing figures inside of a month.

 

I have paid them token amounts of £1 per month since the initial contact with their solicitors. They have so far been unable to provide me with a statement of the account.

 

What action should I take next?

 

Any help is appreciated.

[lookinforinfo]

1]When you asked Asset Link for the original agreement, did you do it as a

CCA request including the £1 fee?

 

The company buying a debt is not obliged to present you with a deed of

assignment.

 

Send an sar with a £10 postal order to GE capital. Among other things, you

will receive details of the charges they applied to your account. Some of them

will probably have been unlawful and these can be reclaimed [if you read the

FAQS on the first page of the forum, you will get an explanation of what

constitutes an unlawful charge]. You will also find out how much the debt was

when it was transferred to AL and when the transfer took place. [You should

also get details of the letter they sent advising you that they had assigned the debt].

 

I am surprised that Payplan have not asked the companies they are dealing with to cease charging interest? Do you know if they did ask, and how many companies agreed? Was GE one of them?

 

That will do for now-but please don't forget to answer question 1.

[Jeff2000]

Hello typhoon,

 

It might be an idea to send a SAR to Asset Link. (Letter in templates section). Ask them for all info they hold on you. You could also send one to GE, if you haven't done so yet. Don't forget the £10 cheque/postal order.

 

Good luck, Jeff.

[Typhoon]

I did it in the form of a CCA 1974 request and included the £1 fee which they have accepted. Asset Link insist that all correspondance is made through their solicitors.

 

They supplied a copy of the original agreement but are now over the 12 days + 1 month for supplying a full statement of account.

 

I assume the debt is now unenforceable without a court order? I wouldn't have thought the court would look favourably on them failing to provide a statement of account and initially demanding over £2000 more than their claimed Deed of Assignment is for.

 

Another point is that I now live in Germany. They are insistant that they can bring an action against me in a German court. I have had legal advice of the opinion that the contract existed under the law of England and Wales and therefore any case would have to be heard in a British court.

 

The agreement was made when I resided in the UK, I have been advised that a German court would only hear a case where one party was located in Germany at the execution of the agreement.

 

All companies agreed to stop charging interest with the exception of GE Capital Woodchester, they just went quiet for a year, collected a years worth of payments at £106 a month then sold the debt to these parasites.

 

Any help is much appreciated.

[lookinforinfo]

I wouldn't waste £10 on Asset Link as they already need a Court order to

enforce the debt.

 

It is probably a good idea if you read the agreement. For should it refer to any

other document in the contract, [like the T&Cs for example] then they should

have sent you a copy of those also. I note that you are aware that they should have included a signed statement from them laying out how much

the debt was, how much you have paid off, how many payments you have

missed and if you have a payment plan with them, the dates and amounts

when those are to be paid.

 

the other thing you should read the agreement for is to find out what you

signed in terms of passing your data on to debt collectors etc. While AL

whether as collectors or assignees will be allowed to contact you re the debt,

there is no provision for them probably to pass that info on to their solicitors

without your permission. And I assume that every time their solicitors write

to you [at a probable cost of around £100 a letter] you are being charged,

I think it best that you write direct to AL.

 

So write to AL, first of all pointing out that they will be aware that they have not yet fully complied with the terms of the CCA request and as such they

are not permitted to pursue you for the debt. [Do not mention the Court Order]. Then inform them that you can see nothing in the agreement that

permits them to disclose your information to any third party [ie their solicitors]

without your express permission. [Your permission only allowed GE Capital to

disclose data to Asset Link, not for AL to disclose to anyone else]. So you

expect no further contact from the soloicitors as it represents a serious breach of the Data Protection Act.

 

That should keep them quiet for a few days.

 

As for your Germany thing. They can apply in a British Court to have a ccj

registered against you [or they could if they had supplied you with all the

cca request data] and possibly a payment plan too. I am unsure how the EEC

Courts interact with each other in being able to enforce a payment plan on

you in Germany. And if you fail to make payments then they could go back to

Court and get a warrant to get bailiffs to collect the debt whenever you

returned to Britain.

Nothing to worry about though since they have blown it.

[Typhoon]

lookinforinfo,

 

Thanks for your excellent reply. Unfortunately they didn't send me a copy of the Ts & Cs (surprise!). I'll get a letter fired off directly to Asset Link outlining the points you have made above.

 

Thanks once again.

[Typhoon]

I have drafted the following letter to be sent tomorrow. Any guidance would be appreciated:

 

ASSET LINK CAPITAL (NO 1) LTD

CAMELFORD HOUSE

89 ALBERT EMBANKMENT

LONDON

SE1 7TP

 

5 February 2007

 

 

WITHOUT PREJUDICE

 

 

GE Capital Woodchester Agreement No: xxxxxxxxx

 

Dear Sir/Madam

 

You will be aware that you have not yet fully complied with the terms of my statutory request in accordance with the Consumer Credit Act 1974. This request was made on 22 December 2006 and the statutory timescale for its completion has now expired. Your organisation is in default of and has committed an offence under the Terms of Section 77 of said act in that you have failed to supply me with a signed statement of the account. This in itself will form a complete defence to any legal action you seek to take against me. You are therefore forbidden from taking any further enforcement action in relation to this debt and as the amounts are disputed, you are forbidden from assigning your rights in relation to the agreement to any other organisation.

 

Furthermore, I see nothing in the terms and conditions of the agreement that permits your organisation to share my personal details with other organisations, namely your appointed solicitor McClure Naismith of 292 St. Vincent Street, Glasgow.

 

It is also my position that you have attempted to profit by deception in that you have claimed via your solicitors that the amount owed under this agreement was over £2000 more than you later claimed your Deed of Assignment in relation to this agreement states. I have full documentary evidence of all communication with your solicitors.

 

I require that you now take the following steps:

 

1: Immediately cease any enforcement action in relation to this debt.

 

2: Order that any organisation you have unlawfully shared my personal information with, destroy any such information.

 

3: Order the immediate removal of any default notice you have registered with any Credit Reference Agency in relation to this agreement.

 

Failure to comply with any of the abovementioned points will result in reports being submitted to both the Information Commissioner’s Office and the Office of Fair Trading. This is likely to result in substantial fines being levied on your organisation.

 

I look forward to hearing from you at your earliest convenience.

 

Yours Sincerely

 

Typhoon

[lookinforinfo]

I think that is fine apart from the Without Prejudice statement. You are better

to remove that so that you have the opportunity to produce it in Court if necessary.

[Typhoon]

I will remove the Without Prejudice statement and send the letter tomorrow. Many thanks again for your assistance, you're a star!

[Typhoon]

I sent the above letter on the 5th and it was received by Asset Link Capital/Link Financial who sent a reply saying they were looking into it and would reply in full in due course.

 

This was duly followed the next day with an email from their solicitors saying that the letter had been passed to them for consideration of the points raised.

 

It is my understanding that under the terms of the Data Protection Act 1998, Asset Link are allowed to share information with their solicitor for the purpose of receiving legal advice. I also understand however that they are NOT allowed to pass any more data than is absolutely necessary for the purpose at hand. This would not include names, dates of birth, agreement numbers, original agreements and basically delegating the entire case including all correspondance with the alleged debtor to their solicitors.

 

Does anybody disagree with this?

[lookinforinfo]

I agree with what yu are saying. Two things spring from the Solicitors handling

their cases.

1] it is harder to get info from them as they hide behind the client/privilege

argument

2] it makes contact more expensive

[Richard Spud]

Regards to All

[Typhoon]

Many thanks for this and sorry for the late reply. I haven't heard a thing from either Asset Link or their solicitors. Is this a good thing?

[sequenci]

Iover £2000 more than their claimed Deed of Assignment is for.

 

Another point is that I now live in Germany. They are insistant that they can bring an action against me in a German court. I have had legal advice of the opinion that the contract existed under the law of England and Wales and therefore any case would have to be heard in a British court.

 

The agreement was made when I resided in the UK, I have been advised that a German court would only hear a case where one party was located in Germany at the execution of the agreement.

 

quite right.

 

the case would have to be heard here, they could possibly enforce it in germany although i doubt they will as it would probably cost a fortune.

[sansho]

Hi All,

 

Interesting thread and a very powerful one at that. Can someone be kind enough to give a link to the full case of Holt v Heatherfield Trust Ltd [1942] 2 KB. Gosh I am gonna wet my pants.. Some of these DCA's have it coming...

[Richard Spud]

Regards to All

[Seahorse]

So, what this really means is, whilst this would be a defence to any court action by a debt purchasing company, the buggers can then send you a Notice of Assignment by recorded delivery at a later date, came back and have another go, and if they win, hit you for costs of BOTH actions. If I understand you correctly.

 

SO, in other words, it would be unwise to rely solely on this as a defence, and another trick would need to be concealed up the sleeve.

[debt_mountain]

So, what this really means is, whilst this would be a defence to any court action by a debt purchasing company, the buggers can then send you a Notice of Assignment by recorded delivery at a later date, came back and have another go, and if they win, hit you for costs of BOTH actions. If I understand you correctly.

 

SO, in other words, it would be unwise to rely solely on this as a defence, and another trick would need to be concealed up the sleeve.

Is it not the case that once a defence has been heard and if the claim has then ended/settled etc, that same claim can not then come back to court?

[Richard Spud]

Regards to All

[Rhia]

RS. Can you confirm if Debt Mountain is correct and if a claim is struck out it is unlikely to be brought again.

Can I also get this quite clear in my own mind. If the DCA starts proceedings but has not complied with S136 of the LoP 1925 if the DCA provides that Notice of Assignment say, a month after starting proceedings, this is grounds for applying to have the action struck out. They cannot start proceedings without this and then say whoops here it is.

[Richard Spud]

Regards to All

[Rhia]

Wow! I will do exactly as you recommend and print this off. Not only does this give a very comprehensive detail of the Notice of Assignment I am also very interested in the information with regard to the application form being passed off as a copy of the executed agreement. This practice is rife across CAG, particularly on the MBNA thread. Thanks Richard.

[Cornucopia]

Wow! I will do exactly as you recommend and print this off. Not only does this give a very comprehensive detail of the Notice of Assignment I am also very interested in the information with regard to the application form being passed off as a copy of the executed agreement. This practice is rife across CAG, particularly on the MBNA thread. Thanks Richard.

 

Am subscribing.

 

Thanks Richard! What a mine of information you are!

 

Rhia, this is just what we needed!

[elizabeth1]

Richard thank you so much for this post it was really needed in here - so many applications being fobbed off as agreements by many companies!!

[NitrousOxide]

Hi,

Good post there, also that POC and defence is worth keeping hold of if you are in a similar situation.