car2403 -v- RBS PLC (Default removal)

[MoonHawk]

Hi,

 

I need to check triton out before I can advise. I'll take a look tomorrow as Companies House is offline on Sundays.

 

Just to help a little in terms of understanding legalities, the debt/account can be assigned in a couple of ways, which have different effects. As you will understand, they will be very vague in admitting what the type of assignment it is, as it will corner them in terms of what they can do and what is expected of them.

 

First type of assignment is "Absolute". This means that the account is sold in it's entirety to a third party. The third party (in your case Triton) would then become the new creditor and also hold all duties as well as liabilities. So the CCA will go to them and any action for penalty charges etc will be brought against them. They can also, as the creditor, take you to court for non-payment. From the cases I have seen on this and other consumer sites, I have found this to be a very rare type of assignment.

 

The more common type of assignment is that the "debt" is sold and not the account. (The wording in your assignment letter suggests this). This means that the assignee holds the rights to collect upon the debt, but the original creditor holds the duties and liabilities. This means that you send the CCA to the OC and sue the OC for penalty charges etc. It also means that the assignee becomes an "equitable owner" (legal for joint owner) and they can not sue for non-payment by themselves. They might try, but if you know this you can counter it in your defense. The OC must be included in any legal action.

 

With either type of assignment, the assignee can not act if a request is made under section 77/78 of the CCA, until it has been complied with. They will argue otherwise, but either they are responsible for duties as the "creditor" (in an absolute assignment) or they hold the title of "agent" under the CCA. No-one else apart from the creditor or their agent can collect on a debt under the CCA. AK have stopped all correspondence and are sulking when I mentioned this in response to them saying they are not the creditor or an agent.

 

I will take a look into Triton and see what else I can advise. The assignment letter says "Ltd". Sometimes these companies are dormant, which means they should not be trading but do. I'll check tomorrow and get back to you. I hope the above helps.

 

Best Wishes

MoonHawk

[MoonHawk]

Having looked at the assignment letter again there are a couple of things that stand out.

 

Firstly that the nature of assignment is not clear (I did say they will be vague).

 

It says on one hand:

We confirm that the balance outstanding on the above account was assigned to Triton Credit Services Ltd on 29th December 2005.

 

In accordance with the aforementioned assignment Triton Credit Services Ltd now holds all legal rights, authorities and obligations to the same.

This would suggest an absolute assignment.

 

and

We confirm that the balance outstanding on the above account was assigned to Triton Credit Services Ltd on 29th December 2005.

along with ...

You should now address all further communications to Triton Credit Limited, who are the legal owners of the debt, at the address below:

Would both normally suggest that it is an equitable assignment where only the debt is passed on. I had the same with AK and have to write a letter to the OC to clarify.

 

I have also looked on Companies House and would be interested to know if Triton had tried and collect from you during 2006. Your letter says that the debt was assigned on 29th December 2005. The last account submitted by Triton Credit Services Ltd was on 31st December 2006 and it was Dormant, which means they have declared that they have not traded in that year. If they tried to collect money from you or you paid them in the period of the accounts (say in the six month prior) then they have traded without declaring it.

 

It is the very fact that the letter says "Triton Credit Services Ltd" makes it interesting. Sometimes the Ltd company is dormant but they trade under the same name as an unlimited company, which is OK.

 

Best Wishes

MoonHawk

[MoonHawk]

In this case though, the letter confirming the assignment says "Triton Credit Services Ltd", so if they have traded when dormant, I am not sure what the repercussions are.

 

Best Wishes

MoonHawk

[MoonHawk]

Whether or not they will be in trouble will depend on the next set of accounts submitted in a years time. If it is Dormant and they have traded then I think they may be in bother, although I am not sure on the legalities. Just know I would not do it.

 

It is in all likelihood equitable, but you will not get a copy of the deed. The deed will probably have details of the amount paid.

 

I also suspect (pure speculation on my part) that there may not be one. these debts are bought in a bundle and not individually and they might sidestep the paperwork (e.g. have one document covering them all) in the hope that there will not be a need. Same as they do not bother to check the validity of the debt by requesting to see the agreement.

 

Sending a S.A.R - (Subject Access Request) won't hurt and the sooner you do it the better. If you are happy then go for it. You might be surprised at what you get. The only problem is that you will need to send two, one to Trident and one to RBS in order to get the full picture. I would personally start with RBS who should give information on the assignment. Make sure you explicitly ask for the agreement and assignment details.

 

Best Wishes

MoonHawk

[MoonHawk]

Looks good . I would send it to either address, just make sure it is signed for.

 

Best Wishes

MoonHawk

[MoonHawk]

The details of assignment will determine who you ask to remove the default (although I think you sue the one that put it on if it was incorrect and you seek damages).

 

According to the Information Commissioners Office guidelines, when a debt gets assigned, as part of the agreement, there is a definition on who is responsible for the data with the CRAs. Some of the OCs keep that responsibility some pass it on. What you need to do is check your file and see who's name is there now. If it is Triton (or the company that officially bought the debt) then the responsibility has passed on, otherwise it remains with the OC.

 

I hope this answers your question.

 

Best Wishes

MoonHawk

[MoonHawk]

If you have not done so already have a read of Elizabeth1's claim against Cabot. It will help.

 

Best Wishes

MoonHawk

[MoonHawk]

Do your own skeleton argument (use what is applicable from Elizabeths). I would do one and stick it up or PM it for one or two of the legal eyes to give you feedback.

 

In my view the enforceability and proof that a default has occurred are the issues. So the the main basis of your claim is the same in my view ... "no CCA = no default" and there should be no default registered.

 

The data processing is a little more complex and I am not too much of an expert. I do know one thing you should be aware of ... according to ICO guidelines, who processes the data with the CRAs is determined when the account is sold. Some cases the OC carries on, some the new asignee takes it over.

 

Thanks but don;t worry about the scales.

 

Best Wishes

MoonHawk

[MoonHawk]

OK lets see if I can calm you down a little Gentle breaths

 

I have checked Companies House and both Triton and Style have addresses which when searched on then internet, show as belonging to RBS.

 

TRITON CREDIT SERVICES LIMITED, WATERHOUSE SQUARE, 138-142 HOLBORN, LONDON, EC1N 2TH

Company No. 03275895

 

STYLE FINANCIAL SERVICES LIMITED, 24/25 ST ANDREW SQUARE, EDINBURGH, EH2 1AF

Company No. SC074080

 

If you have received letters of assignment, then put both companies on (The OC and the assignee). In your claim say that the account has been assigned and when you asked the OC and the assignee to clarify the nature of the assignment and the legal duties of the parties, they have not responded, and as a result you have had no choice but to include both parties. Also state that due to the registration information at Companies House you also believe they are associated organisations.

 

I would say you must include both. I attended a case where the claim was against the OC only, and the case stopped in it's tracks because they just said we do not hold the liability anymore, and the judge asked for the claim to be amended.

 

You can ask for the judge to give you some slack because the other parties have not co-operated as required by CPR pre-action protocols.

 

Best Wishes

MoonHawk

[MoonHawk]

Not at all daft Car. I asked the same questions to Curly and Tom until I started to learn

 

You can ask for info under the pre-action protocols too, and any document you have telling you of an assignment should be OK. You have been told there is one, have asked for clarification from the parties and have not received that clarification. So as far as I can see you are within your rights to put both parties on the claim to ensure clarification. Not sure if there is a legal way of asking the judge in the PoC, to excuse whoever does not hold any responsibility once it is clarified, without paying to amend the claim.

 

Cheers Patrickq. I do not know the legalities in relation to charges, and a legal head would be better answering. I would imagine that it depends on the circumstances around when the charge was placed, e.g if the amount in dispute in court was accurate and did not include penalty charges. Also I do not think you can just say a contract is null and void without the other party agreeing or a court saying so.

 

Best Wishes

MoonHawk

[MoonHawk]

Another point just came to mind Patrickq ... if the assignment was not "absolute" the assignee in their own could not have brought an action in court against you. Either the OC has to do it or be included in the proceedings. So I would look into the nature of the assignment and the name on the claim when the charge was applied for... i am hoping to be corrected by someone with more knowledge of law if I am not correct

 

Best Wishes

MoonHawk