Vampyra -v- Various DCA's

[Todge]

Hi, Richard

 

One quote from yourself, probably more than any other, continues to stick in my mind:

 

Richard Spud - 27th April 2007, 22:59 "I must admit that I am not known for my brevity".

 

I would wholeheartedly agree with your statement, in so far as (on this forum at least) you are more likely to be known for your enlightening, informative and empowering comments.

 

Regardless of your original research requirements (with which I whole-heartedly agree), I am of the belief that such opinions are offered with the genuine (and growing) motive of redressing the huge imbalance between the principles and subtleties of English Law (as it pertains to consumer legislation) and the very consumer who is allegedly so well protected. For many such people, the law is an impenetrable and unattainable ideal.

 

Any positive action which redresses this legal, financial, social, immoral and amoral gulf is fine by me.

 

Todge.

[remus]

Behind you all the way Richard, we will never quit;)

 

Can't wait for the next installment:p

[tomterm8]

I am no longer welcome on CAG

[tomterm8]

I am no longer welcome on CAG

[hisholinessthepope]

I do not profess to have sufficient knowledge of the various laws to determine exactly how these assignments happen. However, I will remain of the opinion that the industry is being a little careful with the full story.

 

The general consenus, indeed agreed by Richard (to which I also agree) is that to comply with S189 of the consumer credit act the rights & duties cannot be separated.

 

“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, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

Being as many believe the rights & duties have been separated solely by assignment under S136 of LoP, instead of arguing “duties” cannot be separated is it not easier to say that there is no longer a creditor by virtue of S189 CCA? If the industry wants to collect money on behalf of an apparent non-existant creditor, is it not about time they clearly explain why they believe there is a creditor under S189 CCA, after all that is the very legislation they are attempting to collect under by virtue of a consumer credit agreement?

 

Welcome Tbern.

 

aktiv,

 

in the infamous Wilson car case Lord Nicholls said concerning the precluding of the court from enforcing a credit agreement

 

30. These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement. The security is not enforceable to a greater extent than the loan: section 113. Where an application for an enforcement order is dismissed, except on technical grounds only, or the court makes a declaration under section 142 that the agreement is not enforceable, any security provided in relation to a regulated agreement 'shall be treated as never having effect': section 106(a). Property lodged with the creditor by way of security has to be returned by him 'forthwith'.

Whilst I appreciate he is specifically refering to the car, I think the sentiment could be carried over to all aspect of the Consumer Credit Act. It is the CONSUMER credit act not the Creditor consumer act!

 

Regards

[make them aktiv runners]

Oops, I think I have finally understood how they have arrived at creditor not changing.

creditor” means

 

A) the person providing credit under a consumer credit agreement

or

B) the person to whom his rights and duties under the agreement have passed by assignment or operation of law,

 

As "duties" not assigned then (B) does not apply so (A) must.

 

I was going to use assignment of rights and delegation of duties in the example letter but I was expecting some-one to say they have not both been assigned (see next paragraph as to why), so instead I thought it easier to use trust basis.

 

Confession time, I have read everything else in great detail but as S189 is only short I was memorising the key words and forgetting "providing credit" so I kept getting confused.

 

Better remember to read properly in future. Thanks for your patience everyone.

 

It looks so simple now, cannot believe how I missed it.

 

ps. The way I was memorising it meant I was seeing a bigger LoP v CCA debate than everyone else.

[Richard Spud]

Regards to All

[Richard Spud]

Regards to All

[Richard Spud]

Regards to All

[tomterm8]

I am no longer welcome on CAG

[remus]

#32 (permalink) Belaflat vbmenu_register("postmenu_784503", true);

Basic Account Customer

 

Join Date: Mar 2007

Posts: 71

 

 

Re: 1st Credit / Lloyds TSB & the solicitors

I have just been perusing some old paperwork and came across some for a LTSB loan from 2001. Bearing in mind your predicament and the willingness of DCA's to go for a charging order effectively making the debt secured, these snippets in the terms and conditions made me think hard about its legality.

 

In the default section were conditions which effectively stated that if I became insolvent and declared bankrupt, have a CCj etc, the full amount will become payable.

Like to see what any Insolvency Practitioner would make of that.

 

Reading further, I came across these other conditions and I quote them as written.

 

"This agreement will not be secured or treated as secured by any mortgage, charge or other security which may have been, or may in the future be, given by you to secure any sums due from you to us"

Then further,

 

"We may assign or transfer all or any of our rights or our rights and obligations under this agreement, but we may only assign or transfer all or any of our obligations under this agreement either with your agreement or where the assignment or transfer does not affect the nature of your rights under this agreement"

 

If I had been in your situation with the charging order and I had those terms and conditions to hand, I would be seriously arguing that I didnt agree to the assigning of the debt to another party and clearly since the other party is now effectively trying to secure my indebtedness, it is a clear breach of the terms and conditions of the agreement.

 

Since this is a quote from a LTSB agreement, I cannot imagine yours being too different. Not that I would ever admit to having a copy of the agreement in your situation but if you do happen to chance across the terms and conditions and you have something similar.......its a possibility.

 

Anyone out there with an astute legal mind who may be able to give a yay or nay to this possibly being used as a defence?

 

is this relevant?

[tomterm8]

I am no longer welcome on CAG

[hisholinessthepope]

Thank you whoever tipped my scales, it is appreciated.

 

And Richard Spud thank you for some further bedtime reading, your posts are always eagerly awaited.

[remus]

Thanks for your response tomterm8, your legal eye brings out the points that us mere mortals do not pick up on Ta:)

[Richard Spud]

Regards to All

[make them aktiv runners]

I think I have worked out why they are ignoring CCA 74, but more worryingly what they may be up to with all these court cases.

 

All the agreements are invalid one way or another so using CCA 74 is a non-starter for them. As the CCA 74 will not help their cause they need to take it out of the picture as much as possible, ie enforce a contract under normal contract law

 

Obviously they have a dilemma of how can they take a 2nd bite of the cherry when there is a conflict bypassing the very law the agreement was made under. They need a case to prove that 2nd bite of the cherry is possible so that they can start with the rest.

 

At a guess the court cases (claimants or defendants) are at the moment not about winning they are more a gathering of evidence. The transcripts of those cases (and I have not seen any) may well show that they are getting judges to unwittingly discredit CCA 74 applying to the “contracts” and at a later date they can then use those transcripts to weight their case for normal contract law to apply.

 

Richard I have nothing to do with the industry. I often use Cabot only because they produce the most "conflicting" letters, I am not their "customer". For the other, confusing long story but I got there in the end.

[hisholinessthepope]

aktiv,

 

as Wilson went all the way to the House or Lords, I do not believe they can not have a second bite of the cherry.

 

If these companies wish to move away from the CCA, that is surely all the more reason for us to retain our position with the CCA!

 

Time for another read of Wilson I think.

[make them aktiv runners]

I meant use elements of numerous transcripts as evidence of judges comments (well at any that helps their cause) in a new case.

 

It was only a thought.

[hitback]

There are many people who can write much better letters than me, so it certainly needs improving especially to make it read that not acknowledging debt. I am submitting this as a general concept. The idea is to appear confused why DCA writing, give OC benefit of the doubt that they may not realise the DCA’s actions are by default reflecting on their image too, questions show there is legal knowledge so will not be pushed around, questions and later paragraph make it clear what type of answers want, DOA cannot include commercially sensitive information so kindly telling them exactly which parts to omit to avoid confusion, cover Data Protection & CCA, lack of the CCA and the knock on effect to the other answers may well encourage (hopefully) them to pressurise DCA into closing the case.

 

Me, being cruel would be tempted to ask the same questions of OC & AC, and then if they do not match instigate a dispute between the 2 of them while the limitations clock is ticking away!

 

 

I am writing to you about the above assignment/agreement/contract you appear to have entered into with XXXXX.

 

At the present time I am unwilling to enter into any further correspondence with anyone other than yourselves as I am receiving little clarification from XXXX.

 

You will no doubt appreciate that suddenly receiving demands for money from a company totally unknown to myself raises concerns over their entitlement. Furthermore before taking legal advice I must establish exactly what has happened to justify whether XXXXX are indeed the only party I am able to deal with. In order for the dispute to be sorted in an amicable and transparent way will you please forward me answers to each of the following:

 

• Who is the creditor/owner for the purpose of S189 of CCA 74?
  
• Who is responsible for responding to a CCA request under S77-79?
  
• Was the sale of this account/debt made by Equitable or Absolute assignment?
  
• What evidence of my permission has been given to XXXX in order to allow them to process data?
  
• Where have I agreed to allow you to assign the debt/account?
  
• I am not party to a novated agreement therefore who is responsible for the duties under CCA 1974 and who should be performing those duties?
  
• Who holds the rights under CCA 1974 and who should be exercising those rights?
  
• Why have I not received a fully executed CCA?

Obviously I am aware that there is a possibility that you no longer have any involvement in the above debt/account. As a result I have phrased the questions in a way that only simple answers are required rather than expansive explanations.

 

Finally as my legal advisor may have other questions, will you please forward me a copy of the above assignment/agreement/contract, less details of the consideration paid/payable and other accounts/debts.

 

Thank you for your time.

 

Hello Everyone,

 

Well I havent been here for a while but lo and behold it would appear we are no further forward to having a draft letter to address the question?

 

Tomterm for me had something that could have easily been expanded on to see it fit for purpose. Activ took it a stage further, but since then all we have is debate, debate and yet more debate!!

 

We seem to be getting bogged down in legalise yet again, and if I'm reading this string correctly there also seems to be arguments from both sides of the camp (why so?) - If this is the case, one side with a vested interest, may be attempting to put the kibosh on yet another one of these damned nuisance letters.

 

Those in their ivory towers dont want this kind of thing - Power to the People, and Consumer Rights - We dont want any of this old nonsense, do we Nigel.

 

Lets have a bit of a giggle with the low life, put young Pilkington-Smyth from the legal office in to scramble their brains a bit. God they didn't even go to public school, the bloody cheek of the people!!

 

As an aside methinks that Richard, ID'd as a rotter, scalliwag, siding with the great unwashed maybe being targeted with arguement and counter arguement. - If this is so again for what purpose?

 

If we carry on like this we'll need a chamber full of barristers to get anything to draft stage - No wonder it takes so long to get anything done in this damn country.

 

PLEASE: - Lets stay positive and just get a letter that asks enough questions, without admitting liability. We can't get everything right, what we want to do is provoke a reaction and to secure more time. - This reaction should be enough to pen, DOE V2.

 

Hitback...

[Richard Spud]

Regards to All

[Richard Spud]

Regards to All

[remus]

Hitback, your comment "We can't get everything right, what we want to do is provoke a reaction and to secure more time. - This reaction should be enough to pen, DOE V2."

If we don't get everything right, are we not then making ourselves vulnerable to attack from the self same people you are lampooning?

Perhaps you could start a thread vis-a-vis a dca letter and see how it progresses, and we can cross reference with this thread of debate and enlightenment, which is slowly unravelling.

Then we can all gain and carry out our own objectives:)

[hisholinessthepope]

On that note remus I have started a new thread and wish to bring it to the attention of contributors to this thread.

 

http://www.consumeractiongroup.co.uk/forum/general/94309-no-cca-agreement-unenforceable.html#post868021

[hitback]

Hitback, your comment "We can't get everything right, what we want to do is provoke a reaction and to secure more time. - This reaction should be enough to pen, DOE V2."

If we don't get everything right, are we not then making ourselves vulnerable to attack from the self same people you are lampooning?

Perhaps you could start a thread vis-a-vis a dca letter and see how it progresses, and we can cross reference with this thread of debate and enlightenment, which is slowly unravelling.

Then we can all gain and carry out our own objectives:)

 

Remus being vunerable to whatever extent is something we all have to live with, all I was trying to say was, if we continually cross-examine what is being said, the best solicitors in HM's fair land could still find fault.

 

This forum surely is about like-minded people who want to help each other. If we keep going like this on a single string, I will be looking in on this at Christmas and we wont be any further forward.

 

Yes I was trying to add a little humour to the proceedings but at the same time attempting to spur people on; although it would seem without much success.

 

This string is going nowhere fast and there are people out there who need help, while we debate zzzzzzzz....

 

I take your point about a seperate string, however I believe it would probably become stuck in the doldrums as this one so obviously is. Unless I find a few more mavericks prepared at least to fire an initial volley broadside, who are then prepared to defend with a counter strategy, I dont think I'll bother.

[hitback]

Dear Hitback.

 

Your comments are noted although I am not quite sure what you mean by stating: “… methinks that Richard, ID'd as a rotter, scalliwag, siding with the great unwashed …”.

 

I apologise if I have misunderstood the objectives and aims of this thread in producing a letter.

 

To save any further delay, I graciously withdraw from the debate which, I recall, I intimated in a previous post in response to your interjection.

 

Richard Spud.

 

Hi Richard nothing underhand meant. I admire your input and obvious handle on the letter of the law, and yes my understanding of this string is that it was started to write a basic but legitimate letter.

 

Outside this I assumed rightly or wrongly that your education may be more public than state and some might not understand you trying to help.

 

However I think that there are some who would prefer not to see letter(s) happen and you as the obvious shining star in this particular forum could be being bogged down with argument, when I thought what was going to happen was that others would collectively agree a Dear Sir/Madam - Yours etc and you might say this will suffice!

 

For Christs sake everyone, even when times are bad - let's not lose our sense of bloody humour!!!