Vampyra -v- Various DCA's

[KJD]

I fully agree and the TS guy was with us all the way. He was just imparting the view that they may say it but it isn't necessarily so!

 

With regards those who may genuinely own the debt - I think he is making the point that they will prove it because they can - right or wrong, whereas those who can't prove it cause untold fuss. He was speaking from his experience of dealing with them over the years.

 

Next time you speak to him (keep him sweet Vamp, could be a great asset!), ask him exactly how we can get them to prove they own the debt and what the correct document should look like (there must be something in a law that forces them to substantiate their claims).

 

I think this is the next big issue being debated after the CCA one

[thinksmart]

An assignee creditor has recently written to me opining that the "burden" of a consumer credit contract cannot be transferred from an assignor to an assignee and therefore that an original credit agreement is not required to be provided by an assignee creditor. Research elsewhere seems to confirm that the "burden" of a contract cannot be passed through assignment.

 

However CCA 1974 s77 & s78 mention a creditor's "Duty" to supply a copy of the original credit agreement and make no mention of "Burden". Also, section 189 "Definitions" states that a creditor is the original creditor or a person to whom his rights and "duties" were passed by assignment (and again makes no mention of "burden")

 

So the law reads one way whilst this creditor chooses to interpret another. Does anyone know of a case history on this?

 

Also, I've notice some suggestions that the Notice of Assignment (as sent to the debtor) should be signed by the original assigning creditor (in order to make it a Legal Assignment). Can anyone confirm where this notion comes from? If its the wording of the Law of Property Act 1925 section 136 can anyone explain it to me as I don't read it that way and other judgments and legal opinions seem to suggest that a simple letter from the assignee creditor is sufficent notification?

[make them aktiv runners]

thinksmart, as the letter come from Cabot by any chance?

[thinksmart]

No actually, not this time - Cabot seem to just ignore all correspondence in my experience. But I do have another question...

 

A solicitor has warned me that since an alleged debt in question is over £5k, the claimant's solicitor (should they win) would be able to put in a claim for costs without a realistic ceiling and costs are quite typically up to twice as much as the value of the claim itself (on top of the claim!). Naturally one can argue all sorts of reasons why the costs are unrealistically high and hope that the Court agrees but in practice Judges are often ex solicitors and if they see the costs as roughly in line with what they would have charged themselves when they were in practice they would see no reason not to grant them in full. Does anyone have experience with being taken to Court for an amount in excess of £5k (and losing)? And if so would you be prepared to retell your experience on the Claimant's costs as awarded against you?

 

Its one thing to take a punt on one number but the dynamics change if the actual cost could be triple. Any thoughts out there?

[make them aktiv runners]

An assignee creditor has recently written to me opining that the "burden" Their choice of wording which just happens to mean a more commonly used word,"duties" of a consumer credit contract cannot be transferred from an assignor to an assignee and therefore that an original credit agreement is not required to be provided by an assignee creditor. bulls... A consumer credit contract is Regulated by the Consumer Credit Act 1974 and according tothat very piece of legislation the assignee must provide a copy under a statutory request by the consumer. Research elsewhere seems to confirm that the "burden" of a contract cannot be passed through assignment.

 

However CCA 1974 s77 & s78 mention a creditor's "Duty" to supply a copy of the original credit agreement and make no mention of "Burden".As above the 2 words mean the same Also, section 189 "Definitions" states that a creditor is the original creditor or a person to whom his rights and "duties" were passed by assignment (and again makes no mention of "burden") "Burden" is just a red herring they are using to confuse, they actually have a duty to supply

So the law reads one way whilst this creditor chooses to interpret another. Does anyone know of a case history on this? There is a lot in the Cabot sub-forum ,Tbern & Seahorse both have very informative threads.

 

Also, I've notice some suggestions that the Notice of Assignment (as sent to the debtor) should be signed by the original assigning creditor (in order to make it a Legal Assignment). There's a lot of debate about this on numerous threads. Basically as debts are bought in bulk they cannot send a true copy of the deed of assignment because it includes other peoples details - you can insist that this true document signed by both parties is shown in court. Can anyone confirm where this notion comes from? Not sure, the main concerns are that DCA's are suddenly demanding money, under pressure the DCA will write a letter confirming they have bought the debt (but then anyone can do that), similiar proof from the original creditor is acceptable normally but some on here have found that it looks like the DCA have used the original creditors letterhead. If its the wording of the Law of Property Act 1925 section 136 can anyone explain it to me as I don't read it that way and other judgments and legal opinions seem to suggest that a simple letter from the assignee creditor is sufficent notification?

The costs must be reasonable. Even if they won it does not necessarily mean that the judge will award costs anyway.

[Richard Spud]

Regards to All

[Vampyra]

Richard

Again a really interesting and important post from you - thank you.

 

Can I just check this bit with you?

In addition, I do not consider it unreasonable for a debtor to require confirmation of a legal assignment, particularly in the circumstances when a Notice of Assignment has not been received by a debtor – and the assignee, assignor or another party (e.g. a debt collection company) cannot produce any cogent evidence of the delivery of such a notice i.e. by Recorded or Special Delivery.

 

Are you saying it is reasonable for a debtor to expect to get full proof that a DCA who claims to own a debt, really does own it? Is this because you further go on to say that it can be an endless round robin of different debt collection agencies?

 

I spoke to TS yesterday who told me - I think the guy was pretty clued up on this - that the greater majority of these DCA's really do not own the debt as they have to return to their paying client for paperwork and thus the debt has not become a true Legal Assignment. His words " when they write "we own the debt", please read this as "we are collection on behalf of the OC".

 

In plain English, are you telling us that it isn't an unreasonable thing to make a demand for who actually owns the debt and to see the relevant paperwork, which as I think you are implying, must be not only signed by the assignee and assignor but also an independant witness? Anything else is not a legally binding document showing proof of sale and ownership?

 

Thank you for also reiterating my findings re the 6 years and statute barred. The fact that a debt is not acknowleged or payed is not, I found out, a good enough reason to SB it. The OC/DCA must have made not contact thus no attempt to collect in the 6yrs - from my findings.

 

So, put plainly, that when these OC/DCA's claim the ownership of debts, which I have a deep seated suspicion is, in the majority of cases, an Equitable and not a Legal Assignment, please correct me if my thoughts are misfounded. Once claimed, if the DCA decides it can't collect for whatever reason, it hands it back to the OC, who 'assign' the debt to another DCA. This all happens after the debt may well have been 'charged off' & also sold.

 

If this is the case, could one not reaonsable ague that a debt, once 'charged off' and tax claimed back and possible a fee paid for it - has been written off, for tax purposes and should then no attempt should be made to collect? Please tell me if I am wrong.

 

Lastly, one of the guys on here, think it was Dannyboy but I'm very tired today, gave a link to a DCA who had a .co.uk web address but was based in Antwerp. They talk about looking and assessing all debts before they take them on. In this country the sharing of that info on the basis that a DCA might take on the debt or not, could be subject to law infringment under the Data Protection Act 1998 - don't have the sections to hand - as it is sharing information with a 3rd party who could, for arguements sake, take the debt details, tell the OC they won't collect, yet actually try and collect the debt independantly and claim the entire balance. It's unlikely, but I guess a reasonable possibility. The OC and DCA could be held to account under the DPA. If the DCA is offshore, could they legitimately ship details of debt abroad, view all debts and effectively pick and chose those to pursue for the 'client' and have access to sensitive data, yet not be subject to the DPA as it is being done in another country?

 

Lastly, - oh I can ramble too - by the mere term 'client' which is referred to over and over regarding collection and retrieval of original documentation, does this not more than infere that the DCA/solicitors/whatever are doing a service be it for renumeration or not, on behalf of the OC and cannot reasonably & legitimately own the "Thing in Action", else they would be their own clients?

 

Please excuse any grammatical errors or spelling I am extremely tired, but I hope my questions are clear.

Many thanks

Vampy

[Vampyra]

Next time you speak to him (keep him sweet Vamp, could be a great asset!), ask him exactly how we can get them to prove they own the debt and what the correct document should look like (there must be something in a law that forces them to substantiate their claims).

 

I think this is the next big issue being debated after the CCA one

 

Read this thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/82992-deed-assignment.html

 

It's a hard read as Richard is stating absolute law. Well its hard if you find the logic a bit wayward to follow - I get some of it! LOL

 

Sit with tea and biccies and slowly digest it - I THINK Richard is saying a Deed of Assignment MUST be signed by the assignee, assignor and an independant witness. But see the parts relating to Equitable and Legal Assignment too. Also I have questioned the use of the term 'client'.

 

Hope you gain something from it.

[Richard Spud]

Regards to All

[dannyboy660]

With regards those who may genuinely own the debt - I think he is making the point that they will prove it because they can - right or wrong, whereas those who can't prove it cause untold fuss. He was speaking from his experience of dealing with them over the years.

 

Of course, that's it.

 

Reading that website link - and what you've posted so far on this thread, the mist is beginning to clear. Patching all the various bits and pieces together on the DOA issue etc, I think the penny just dropped.

 

I am now of the opinion that a purchaser can only make legal claim to the debt once acknowledgement/payment is received from the debtor. They have to force this by whatever means they can. That's what this 'option' purchase carp is all about. This means the majority of DCA's/Purchasers won't have the paperwork anyway, probably just a name, address and telephone number. The debt still legally belongs to the OC who may or not be able to take action depending on the charge off status and if any outside payment has been received from HMRC or underwriters.

 

 

It's all actually beginning to make some sense.

 

Need to have a wee think about the bigger picture.

[Belaflat]

From the Lowell group home page,

 

The Lowell Group offers a refreshing, ethical and innovative approach to debtor management.

And when you have all stopped laughing,

 

The Lowell Group specialises in the purchase and servicing of delinquent debt from a range of consumer credit granters, including; banks & credit card issuers, telecoms/mobile providers, utilities, finance houses, retail credit/home entertainment providers. The Group recognises the dramatic growth in the debt purchase sector and has the financial, operational and analytical resources to manage large single placements and forward flow portfolios.

So Debt purchase is a reality as far as these bloodsuckers go.

 

ps, heard that Lowells were on a Vampires course but got thrown off for being too greedy, this was shortly after they finished at the Saddam Hussein school for the humane and ethical treatment of unfortunate minoritys.

[djdave]

This could be very interesting....

 

[thinksmart]

Thanks Well Wisher (Richard) - everything you have said (in your latest post at least) fits perfectly with my own thinking.

 

For anyone who has experienced problems in finding business banking facilities with an adverse credit history I think that today I MAY have found a solution in an account which can be opened by limited companies, has a cheque book, and pays decent interest but gives no credit facilities and therefore needs no credit check!! As soon as the details come through and I've checked for pitfalls I'll share the the details (yes for free) - if anyone wants this kind of thing that is?

 

Lastly, couldn't resist sharing the following with you which I came across accidentally today...

Look Before You Lend!

 

A Consumer Credit Act 1974 ("CCA") agreement must state the amount of credit, the rate of interest, and the number, amount and frequency of repayments. If not, it is potentially unenforceable.

 

In 1999 Mrs Wilson borrowed £5,000 and gave her BMW as security. A documentation fee of £250 was added to the loan. The agreement stated she had borrowed £5,250.

Mrs Wilson failed to make repayments. The lender claimed the balance and declared an intention to sell the BMW. Mrs Wilson applied to Court for a declaration that the credit agreement was unenforceable because it wrongly stated the loan as £5,250 and not £5,000.

 

In November 2000 the Court of Appeal reluctantly decided that the CCA made the agreement unenforceable. Mrs Wilson was entitled to recover her BMW and not repay the loan. Bad news for the lender.

 

In May 2001, the Court of Appeal decided this result was unjust as it gave Mrs Wilson a windfall even though she had not been misled or prejudiced by the flawed agreement. The Court felt the provisions of the CCA which made the agreement unenforceable were incompatible with the Human Rights Act 1998. That is the lender's right to enjoyment of its property - money. Good news for the lenders.

 

This decision was appealed to the House of Lords. This summer the House of Lords overruled the Court of Appeal. It looked at the social policy reasons why the CCA made certain credit agreements unenforceable. It rejected the idea that lenders should be able to rely on the Human Rights Act when they couldn't rely on CLA. Good news for the consumer.

 

Failure to comply with CCA regulations can be fatal.

 

Jan Arkwright

Associate

11 September 2003

 

Acknowledgment to : Look Before You Lend! - Consumer Credit Act 1974

[thinksmart]

PS I'm NOT Jan!! She wrote the article (I assume)

[Vampyra]

So Debt purchase is a reality as far as these bloodsuckers go.

 

ps, heard that Lowells were on a Vampires course but got thrown off for being too greedy, this was shortly after they finished at the Saddam Hussein school for the humane and ethical treatment of unfortunate minoritys.

 

 

Hey steady on - even Vampires don't sink THAT low!

[smartmartian10]

If it is deemed unfair at common law and under the Unfair Contract Terms In Consumer Contracts Regulations 1999 (SI 1999/2083), that a penalty clause is unlawful as the application of a penalty clause would amount to unjust enrichment then, I suggest, the same principle can be applied to the failure of a Creditor to supply information under ss.77 and 78 of the CCA 1974, which is to opine, that a Creditor in default of providing the required information, and in addition has committed an offence under the provisions, should not be permitted to benefit by the application of interest and charges over and above the principle sum.

 

Richard - if a credit card providor writes and states we have no credit agreement, could we reclaim charges and interest on the account for the history of the account?

[Richard Spud]

Regards to All

[make them aktiv runners]

Richard

Thank you for also reiterating my findings re the 6 years and statute barred. The fact that a debt is not acknowleged or payed is not, I found out, a good enough reason to SB it. The OC/DCA must have made not contact thus no attempt to collect in the 6yrs - from my findings.

 

Vampy, can I just clarify if you are referring to Richard's previous post on your quote above?

My understanding of the Limitations Act is that after 6 years of the debtor not acknowledging or making payments the debt is permanently statute barred, but a new limitation period of upto 6 years can be set by a judge if the creditor can prove the debtor as acted in a way to prevent action being taken during those 6 years (eg been totally untraceable by living in some-one elses house, not being on electoral roll,not claiming benefits & getting paid in cash without paying taxes etc).

[PriorityOne]

Hi Richard,

 

So what you are saying is that the interest & charges are re-claimable from a DCA who has bought a debt... but the payments made to the DCA are not, even when they have failed to comply with a CCA request ?

[KJD]

I must admit that I am not known for my brevity in any event, and I am aware of my relatively formal writings although I do make an effort not to overuse academic legal jargon wherever possible - while remaining objective and providing authority for my comments when appropriate. I am also aware that the disclosure of excessive amounts of legal information (which often requires a good degree of experience in statutory interpretation to be useful) has the potential to be counterproductive to my fundamental aim in assisting with Consumer Protection.

 

Setting aside the waffle in the above paragraph which may appear to be somewhat condescending (which is not my intention I assure you....

 

Richard, I for one do not view your posts as condescending. I might have to read them more than once to take in all the points, but have yet to read one of your posts which has not clarified some very confusing issues being raised and discussed on this site. There is a lot of information posted on these threads, especially regarding CCA requests, obligations, etc and I am often concerned about some of the advice posted, where the poster has not quite 'got it right'. Your posts come across as well researched and authorative. For those of us who do not have a legal grounding (and as you state, there are some very good legal members here), thank you the time and effort you are spending on these matters. It is very much appreciated.

[make them aktiv runners]

Richard will you clarify if this theory is right?

 

For loans/credit cards (ie non-land related) assignments are usually made by written contract rather than deed. They cannot reallybe made by deed as the CCA agreements are themselves governed by the 6 year limitation period set out in the Limitations Act not 12 years which land is.

 

The assignment always starts of as "equitable" meaning the OC must be party for suing in court. Once notice of assignment as been received by the debtor then it becomes a "legal assignment" where it is up to the AC solely to sue (this might explain their reluctance to supply).

[smartmartian10]

Richard, thank you for the swift reply. I have printed off the linked article and will read it over the weekend at a better hour than now!

 

My question, as I think you have realised, was "very direct and concise" because I have a vested interest(s).

 

Thanks again, for myself, and hopefully many others!

[dannyboy660]

I think Richards posts need to be read carefully to understand the underlying legal points that are being made. CCA'74 etc may be all en-compassing legal acts, but individual contracts with lenders may vary, therefore there can not be a "one size fits all" policy. It would be very unwise (imo) to tell someone "you should say/do/write...." whatever, as you could unintentionally being dropping them in it within the bounds of their contract, and nobody wants to drop anybody in 'it'.

 

Richards posts contain invaluable legal statement and his own opinions, which could be applied to your own situation and used in legal process, should it become necessary.

 

That's my understanding, and sorry if I've spoken out of turn, or misunderstood.

[Vampyra]

Vampy, can I just clarify if you are referring to Richard's previous post on your quote above?

My understanding of the Limitations Act is that after 6 years of the debtor not acknowledging or making payments the debt is permanently statute barred, but a new limitation period of upto 6 years can be set by a judge if the creditor can prove the debtor as acted in a way to prevent action being taken during those 6 years (eg been totally untraceable by living in some-one elses house, not being on electoral roll,not claiming benefits & getting paid in cash without paying taxes etc).

 

This is what I thought but was recently told that f the creditor or it's agents have made attempts to contact the debtor in the 6yrs period, even if there is a gap, they have actively persuing the recovery of their money. Thus starting the 6yrs period over.

 

I have to say I tried to ask some relevant questions and said to Richard if I am wrong correct me, but maybe he missed my post. Therefore, please do not take what I have said to be gospal - just an opinion as until I have a firm yes or no to questions I would never like to say it's true.

 

I'm also a little perplexed by Dannyboy stating these are not "coverall" Acts. Surly an Act is an Act and not manipulated to different situations? I maybe wrong here maybe someone can explain.

 

I am a pain I know - was always told "keep asking questions, however stupid you sound, til you understand" - so now you know

[dannyboy660]

I'm also a little perplexed by Dannyboy stating these are not "coverall" Acts. Surly an Act is an Act and not manipulated to different situations? I maybe wrong here maybe someone can explain

 

 

CCA'74 etc may be all en-compassing legal acts, but individual contracts with lenders may vary, therefore there can not be a "one size fits all" policy.

 

It just means although CCA'74 etc are the legal acts and the foundation of the credit agreement, there may be different clauses and conditions written into contracts by different lenders. When people say don't sign anything until you've read the small print, it's good advice. Basically, not all credit agreements are identical and so advice in one situation, obviously, may not apply in another unless you have the full facts.

 

Statute of Limitations 1980 requires payment or acknowlegdement, not just a creditor pursuing. Think about it....how do they know they are pursuing the right person??? The real debtor may be dead!!! You have to acknowledge it in writing or by making payment.