Validity? of an Debt Assignment re Liabilitie & Duties

[Vulture_Bank]

Validity ? of an Assignment of a debt re liabilities & duties

 

The following five definitions listed below are reproduced from a “legal dictionary”

 

1. assignment of contract

2.: assignment

3. equitable owner

4. property

5. chose in action

 

Source:-

http://www.gillhams.com/dictionary/101.cfm

 

Term 1 : assignment of contract

Unless a contract provides otherwise, the liabilities and duties under a contract may not be assigned, in contrast to the benefits under a contract which may be assigned without the consent of the other contracting party.

Although most professionally drafted contracts expressly prohibit such assignments, the provisions to prohibiting an assignment of a contract are redundant.

In order to assign the burden of performance under a contract to a third party, the contract must be novated. Novation takes place when all three parties - that is, the current contracting parties and the incoming party who will take on the performance obligations - enter into a contract effectively stating that the outgoing party with a duty of performance will no longer be obliged to perform and the incoming party will take on those performance obligations.

Usage: A party to the contract purported to assign their obligations without the consent of the other party.

Related Words: novation; contract; agreement; offer; acceptance; consideration; accord and satisfaction; acquiescence; waiver; breach of contract; agreement; consensus ad idem; quid pro quo; legal capacity.

 

 

Term 2: assignment

A transfer of either or both of the legal or equitable title in property. A chose in action may be assigned, such as intellectual property rights or contractual rights.

Usage: The assignment of the lease to the new lessee was completed on the planned date.

Related Words: chose in action; chose in possession; property; assignee; asset.

 

 

Term 3: equitable owner

An equitable owner arises on an event which results in the legal and beneficial titles to property becoming separated.

Usage: A software house writes software on behalf of a customer and the contract fails to assign the legal title to the software back the the customer with the customer then being the equitable owner of the software.

Related Words: legal owner; legal title; equity.

 

 

Term 4: property

Types of Property in the UK

A right of property is defined by a power granted at law whether in equity or at common law to transfer property to another. It may be assignable in an inter vivos transaction or devisable under a will, but is subject to the extent that the property can be disposed of in competition with other interests in the property.

Property is considered to fall under one of two categories, either real property or personalty. Within these two categories, real property consists of corporeal hereditaments (land) and incorporeal hereditaments (intangible rights). Personal property or personalty consists of chattels personal or chattels real.

Choses in possession are physical property capable of possession. Choses in action are enforceable rights that vest in a legal entity. These choses in action are the property that are the means to enforce rights in respect to the property. They may be debts, dividends, bills of exchange, intellectual property rights (but technically not patents), policy of insurance or a share in a company. So choses in action encompass all personal rights of property which can only be claimed or enforced by action.

Legal property can be dealt with by a declaration of a trust, an assignment, an agreement to assign and a constructive trust.

Equitable property can be dealt with by assignment, an agreement to assign, a declaration of trust, a direction to a (whether legal property or equitable property), a disclaimer, nomination, a dealing by a trustee of a resulting trust.

An assignment is an immediate transfer of an existing property right, vested or contingent from the assignor to the assignee.

Usage: The right was properly characterised as a chose in action and was enforced by legal action.

Related Words: real property; chose in action; chose in possession; assets; charge; incorporeal hereditaments; corporeal hereditaments; intellectual property rights; declaration of trust; chattels personal; chattels real; trustee; dividends; bills of exchange.

 

 

Term 5: chose in action

An intangible property right or property which is legally not in a person's possession, but is only enforceable by legal process: that is by court order. This choses in action require commencement of legal action in order to enforce the right.

Usage: Intellectual property rights are choses in action.

Related Words: property; lien; shares; ownership; action in rem; action in personam.

 

 

 

 

Ok

 

just a very fine point is there a formal difference between liabilities and duties ???

 

 

 

looking at terms and conditions from a credit card agreement from well over 10 years ago it says

 

 

"We may assign any of our rights and/or duties under this agreement and/or any amounts on the Account (whereupon references herin to "we" , "us" and "ou" shall to the extentof the assignment be read and construed as references to the assignee), but the assignment will not affect any rights which you may have against XXXXXXXX or the supplier in respect of the purchase from it of goods or services by use of the card"

 

 

Now looking at the current MBNA terms and conditions

 

 

15c We may transfer our rights or duties under this agreement or arrange for any other person to carry out our rights or duties under this agreement. You may not transfer your rights or duties under this agreement.

Clearly there in neither of the above terms and conditions is there any reference to liabilities.

 

 

The theory being put forward is that since under the original terms and conditions there is no reference to liabilities they (liabilities) cannot be assigned hence any assignment cannot be a legal assignment hence must be equitable.

 

Consequently one could theoretically suggest that “it was not in the creditors interests” to produce the original terms and conditions” because they would reveal the limitations of possible assignment (if any).

However the debtor could argue that since there are no original terms and conditions there is no proof that any kind of assignment is possible in the t & c of the original contract .

 

 

 

Can anyone come up with any “legal evidence” to suggest liabilities and duties are mutually exclusive.

[Seahorse]

It does seem to be confirmed by Glen Crawford of Cabot that assignments are indeed equitable. And one of the reasons for this being they could avoid paying stamp duty in the past.

 

Of course, if they then wish to proceed down the litigation route, the assignment needs to be made a legal assignment, in order to take action on their own behalf without the involvement of the OC. And so one assumes that in that case, stamp duty would have been paid on a per account basis.

 

I believe that the need for this to happen is irrelevant as above, but still the assignments themselves are equitable. However, in order to procede to court to chase a debt, the assignment still needs to made absolute, IMHO. And so they then need to take on the duties of the OC.

 

Having said that, if a contract were to preclude such a thing hapening, I am baffled as to how they imagine they have any right to take legal action to recover the debt in their own name only. Perhaps someone could explain how that works in simple terms for a simple soul like me to understand?

[Vulture_Bank]

yes it is looking equitable all the way to the loosing post

 

one up to date t & c says

 

"we may transfer our rights or obligations under this agreement at any time, without giving you notice.In these circumstances you authorise us to give that person any financial or other information about you"

 

 

if this isn't equitable what is ?

 

note it says OR not AND

[patrickq1]

Term 5: chose in action

An intangible property right or property which is legally not in a person's possession, but is only enforceable by legal process: that is by court order. This choses in action require commencement of legal action in order to enforce the right

hi vulture as i said before what i thought was a deed of assignment but it turns out was a legal mortgage,the bank terminated the contract in 1992 i argued with them and objected to their ways and means of doing business with me so much so before the termination of the contract they wrote to me and told me quite forcefully to sell my stock at a loss in order to bring the account to a close during this time they also sent me a fax with a skeleton on it(it was a skeleton sitting by a computor with a guy with a bowler hat and a breifcase written on the breifcase was rhe words bank the skeleton had a spiders web covering it and the computor) and this was in answer to some queries as to the bouncing two cheques when their was sufficiannt cash funds to clear the cheques,then after the skeleton incident this was when i received the letter putting me under intense duress to sell off my stock at a loss...where do i stand and is it still the case of the 12 years rule they are out of time with this charge (legal mortgage) against my property

patrickq1

[patrickq1]

bump

[patrickq1]

The theory being put forward is that since under the original terms and conditions there is no reference to liabilities they (liabilities) cannot be assigned hence any assignment cannot be a legal assignment hence must be equitable.

so perhaps this is also open to question for me as to why they have not gone for any type of selling of this debt or do they think their is still a case for them to reclaim moneys even after 14/15 years i am at the moment typing all the document into my pc as i have no scanner so i am doing it the hard way

patrickq1

if someone more knowledgable than me can look at both agreements i have with the bank legal mortgage and i think the other is terms and conditions would appreciate some help as to would these contracts stand scrutiny as to their validity and also they have not been in contact since 1993 oct...

patrickq1

http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach-13.html?highlight=PATRICKQ1

[make them aktiv runners]

just a very fine point is there a formal difference between liabilities and duties ???

 

In a word, yes. The meaning of the two words do seem the same at face value but they are not.

 

Legally, Liabilities relate to the actual debt amount, ie you cannot transfer it to say your neighbour unless the contract says it can (none of these contracts do).

 

Duties relate to different types of performance by parties to the contract, eg the creditor has a duty to supply a copy of the CCA, or, the debtor has a duty to pass on a change of address.

[make them aktiv runners]

It does seem to be confirmed by Glen Crawford of Cabot that assignments are indeed equitable. And one of the reasons for this being they could avoid paying stamp duty in the past.

 

Of course, if they then wish to proceed down the litigation route, the assignment needs to be made a legal assignment, in order to take action on their own behalf without the involvement of the OC. And so one assumes that in that case, stamp duty would have been paid on a per account basis.

 

I believe that the need for this to happen is irrelevant as above, but still the assignments themselves are equitable. However, in order to procede to court to chase a debt, the assignment still needs to made absolute, IMHO. And so they then need to take on the duties of the OC.

 

Having said that, if a contract were to preclude such a thing hapening, I am baffled as to how they imagine they have any right to take legal action to recover the debt in their own name only. Perhaps someone could explain how that works in simple terms for a simple soul like me to understand?

 

The easiest way to spot the assignment type is in the contract (deed of assignment). If the bank is telling the DCA what it must do as part of the contract then it is likely to be Equitable, eg if there is a condition for compliance with CCA 74 then this would only be necessary if the bank was ultimately liable for failures to comply.

[Vulture_Bank]

http://www.consumeractiongroup.co.uk/forum/show-post/post-848075.html

 

just to refresh newer readers to this excellent post of rorys WHICH SHOULD BE MADE INTO A STICKER when in time a seperate section is developed on assignment

" I would also draw your attention to this:

 

“Assignment of debts

 

Assignment is a process whereby debts are sold on to another organisation, and is common practice within the industry.

 

For an assignment of a debt to be legally effective, it is necessary to assign both the rights and the responsibilities of the creditor under the agreement.

 

Partial assignment which, in effect, assigns the right to enforce but not the associated responsibilities will be invalid and will preclude the assignee from enforcing the debt.”"

 

 

and a second very important post by rory

 

"Just a quick point with regards to notice of assignments.

 

If the notice includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419"

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-860862.html

[patrickq1]

if someone more knowledgable than me can look at both agreements i have with the bank legal mortgage and i think the other is terms and conditions would appreciate some help as to would these contracts stand scrutiny as to their validity and also they have not been in contact since 1993 oct...

patrickq1

http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach-13.html?highlight=PATRICKQ1

[FANTASY CHARGES]

Subscribing

[patrickq1]

bump

http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach-13.html?highlight=PATRICKQ1

[letitbeme]

http://www.consumeractiongroup.co.uk/forum/show-post/post-848075.html

 

just to refresh newer readers to this excellent post of rorys WHICH SHOULD BE MADE INTO A STICKER when in time a seperate section is developed on assignment

" I would also draw your attention to this:

 

“Assignment of debts

 

Assignment is a process whereby debts are sold on to another organisation, and is common practice within the industry.

 

For an assignment of a debt to be legally effective, it is necessary to assign both the rights and the responsibilities of the creditor under the agreement.

 

Partial assignment which, in effect, assigns the right to enforce but not the associated responsibilities will be invalid and will preclude the assignee from enforcing the debt.”"

 

 

and a second very important post by rory

 

"Just a quick point with regards to notice of assignments.

 

If the notice includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419"

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-860862.html

Hi

I have been reading this with interest . Am I correct in saying that if the assignment amount includes unlawful charges ( inflated late payment charges) then it renders the assignment invalid

 

Regards LIBM

[letitbeme]

bump

[car2403]

Hi

I have been reading this with interest . Am I correct in saying that if the assignment amount includes unlawful charges ( inflated late payment charges) then it renders the assignment invalid

 

Regards LIBM

 

The answer to this lies here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/123771-validity-debt-assignment-re.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/87739-deed-assignment.html#post1295022

 

In essence, yes.