Equitable Assignment & how it affect CCA 74

[make them aktiv runners]

This is an expansion of what Aktiv Kapital are saying at the start of this thread:

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112901-have-you-sent-cca.html

[make them aktiv runners]

Well we know their claims but here goes:

189 Definitions

“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;

True, DCA’s did not provide the credit. They therefore become the creditor if rights & duties are assigned. The creditor has not changed.

“owner” means a person who bails or (in Scotland) hires out goods under a consumer hire 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 hire agreement, includes the prospective bailor or persons from whom the goods are to be hired;

True, DCA’s did not provide the bail/hire. They therefore become the owner if rights & duties are assigned. The owner has not changed.

[make them aktiv runners]

If they are not creditor/owner where are they in the CCA 74? There is only 1 option:

145 Types of ancillary credit business

(1) An ancillary credit business is any business so far as it comprises or relates to—

(d) debt-collecting,

(7) Subject to section 146(6), debt-collecting is the taking of steps to procure payment of debts due under consumer credit agreements or consumer hire agreements.

146 Exceptions from section 145

(6) It is not debt-adjusting, debt-counselling or debt-collecting for a person to do anything in relation to a debt arising under an agreement if—

(a) he is the creditor or owner under the agreement, otherwise than by virtue of an assignment, or

(a) he is the creditor or owner under the agreement by virtue of an assignment made in connection with the transfer to the assignee of any business other than a debt-collecting business, or

Only a creditor or owner cannot be classed as a debt collector. As they claim to be neither they must be debt collectors.

[make them aktiv runners]

Where does the CCA create them problems?

175 Duty of persons deemed to be agents

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

They can write whatever they want in their Deed of Assignment as at the end of the day the CCA 74 gives them a contractual duty.

172 Statements by creditor or owner to be binding

(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

Section 175 allows for the above to be binding when requested/supplied via the DCA

141 Jurisdiction and parties

(1) In England and Wales, the county court shall have jurisdiction to hear and determine—

(a) any action by the creditor or owner to enforce a regulated agreement or any security relating to it;

(5) Except as may be provided by rules of court, all the parties to a regulated agreement, and any surety, shall be made parties to any proceedings relating to the agreement.

It clearly states creditor/owner, there appears to be no provisions for anyone else to take action. The DCA can only take action with the actual creditor/owner. (5) can be used to counterclaim that they must obtain permission of the court and this can only be granted if they have absolute legal assignment (rights & duties).

[make them aktiv runners]

Do not like this one, but it does have advantages for some

174 Restrictions on disclosure of information

(1) No information obtained under or by virtue of this Act about any individual shall be disclosed without his consent.

(2) No information obtained under or by virtue of this Act about any business shall be disclosed except, so long as the business continues to be carried on, with the consent of the person for the time being carrying it on.

(3) Subsections (1) and (2) do not apply to any disclosure of information made—

(a) for the purpose of facilitating the performance of any functions, under this Act

(3) seems to give the creditor the right to pass on information without consent. If the “debt” was sold whilst in dispute due to non-production of the CCA then the creditor is in the poo for passing details on. Unfortunately for everyone else it is a case of reasonable proof that the CCA did not exist upon sale.

[make them aktiv runners]

The best part

“debtor” means the individual receiving 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 debtor;

Without production of the actual CCA then there is no debtor (yes DCA land we can play your word games too)!

[make them aktiv runners]

A final thought.

Assuming there is a right to enter a default on credit files. Is it right for the creditor to enter a default then mark it as satisfied, while the DCA creates a new entry with the same default date? Obviously it seems unfair especially as new credit applications are not guaranteed to see that the 2 entries are for the same debt (add in potential to suffer an injustice under Data Protection Act). Using the CCA 74, realistically only the creditor/owner should appear on credit files. As the DCA are stating they are not the creditor/owner and the entry is for a CCA 74 agreement, then it is reasonable and justified that they only update the existing entry, ie under the actual creditor/owners name.

[NitrousOxide]

Again some people on here are invaluable, well done Aktiv.

Right (Rubs hands)...

I've been up a while researching.

If you have an egg card or egg loan and it's sold on, the LoP argument is blown out of the water if you provide them with a copy of the T&C's (This may apply to other banks).

 

Have a look at point 18.2 below:

 

The T&C's for loans say pretty much the same thing.

This is in black and white telling you the CCA 1974 applies even after the debt is assigned, sold or whatever.

[make them aktiv runners]

I agree. It does not matter what type of assignment they have, the LoP Act, at the end of the day they have no choice as they must supply a true copy of the original credit agreement etc.

[SteveH2508]

Do not like this one, but it does have advantages for some

174 Restrictions on disclosure of information

(1) No information obtained under or by virtue of this Act about any individual shall be disclosed without his consent.

(2) No information obtained under or by virtue of this Act about any business shall be disclosed except, so long as the business continues to be carried on, with the consent of the person for the time being carrying it on.

(3) Subsections (1) and (2) do not apply to any disclosure of information made—

(a) for the purpose of facilitating the performance of any functions, under this Act

 

(3) seems to give the creditor the right to pass on information without consent. If the “debt” was sold whilst in dispute due to non-production of the CCA then the creditor is in the poo for passing details on. Unfortunately for everyone else it is a case of reasonable proof that the CCA did not exist upon sale.

 

I think this section is mainly aimed at Enforcement bodies who discover 'privileged' information in the course of their duties. There are very similar sections in the Trade Descriptions Act etc..

 

Subsection (3) allows information to be passed to other enforcement agencies eg TS passing information to OFT regarding complaints, licencing issues etc..

[Curlyben]

As I see it LoP s136 can work with the CCA.

 

Legal assignments of things in action.- (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a)

the legal right to such debt or thing in action;

(b)

all legal and other remedies for the same; and

©

the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a)

that the assignment is disputed by the assignor or any person claiming under him; or

(b)

of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

 

 

 

Now as this is an ABSOLUTE assignment then the rights AND duties are passed to the DCA.

There is no getting away from this.

So for the purpose of CCA 74 s77-79 they must comply with your request by virtue of they are, as defined in s189 "the person to whom his rights and duties under the agreement have passed by assignment or operation of law".

 

 

True this thread was really concerning Equitable Assignment, but as the DCA's love to quote LoP s136 as the vehicle of assignment the, surely, they have shot themselves in the foot and this is NOT an equitable assignment at all.

[Curlyben]

Just for info really:

define: Equitable assignment - Google Search

define: ABSOLUTE assignment - Google Search

[oneofakind]

Legal assignments of things in action.- (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person

 

Am I right in thinking then, that if there has been no notice of assignment sent to me, they cannot use LoP as a 'loophole'?

 

[Curlyben]

LoP isn't really a loophole as such, just their interpretation/misunderstanding of it.

I believe that what they try and pass off as the NoA is the Goodbye/Hello letters.

[tifo]

I believe that what they try and pass off as the NoA is the Goodbye/Hello letters.

 

Yep.

 

As s.136 only deals with an absolute assignment, how does this affect Cabot responses which always say they bought the right (to collect) but not the duties (to comply) so are not the creditor? They must be wrong then as they carry on defaulting people like me like a creditor.

[Curlyben]

Cabot believe that they are purchasing a charge only and NOT a debt.

This is what they are relying on in this case.

A debt is NOT a charge and as such any assignment under s136 is absolute.

 

They are purposely misinterpreting this section of s136

 

(a)

the legal right to such debt or thing in action

;

(b)

all legal and other remedies for the same; and

©

the power to give a good discharge for the same without the concurrence of the assignor:

[FANTASY CHARGES]

an excellent thread which must not be lost

[tifo]

I believe that what they try and pass off as the NoA is the Goodbye/Hello letters.

 

Isn't it? I've never had anything else from any DCA. I thought the 'hello' letter was the notice itself?