so...... is there a meet or not a meet.... that is the question.

well for a start, It's not swapping one creditor for another.... its swapping a creditor for a debt purchaser who claim to have transferred the rights but not the responsibilities. secondly, if the debt was still with the original creditor they would need to issue a default notice before taking action, if the default was rectified then the line of credit would be restored and things would go on as before. In this case, no default or termination was issued by the OC, the debt was sold without notification to this 'debt purchaser' who does not acknowledge any obligations under CCA, so as a debtor, I am being given no oppertunity to rectify the situation.... therefore it must surely be detrimental. tbh though, I am just trying to clarify the legalities of the position.... can a debt purchaser who claim not to be the creditor issue proceedings without the original creditor?

The original agreement included the clause:- “We may transfer our rights and benefits and our obligations under this agreement at any time without telling you first provided that this does not detrimentally effect your rights and obligations under the agreement” but if they have sold it on to a debt purchaser surely that affects my rights....?

made my day! well done hiuth!

ok, so what happens when the 'debt purchaser' issues proceedings for a credit card debt without being joined in action by the OC? is there a relevant section of law that states that they have to be joined with the OC, or that they cannot persue proceedings?

If a DCA buys up your debt from a credit card company but claims NOT to be a creditor but a debt purchaser, and then issues legal proceedings, are they not obliged to be joined in proceedings by the OC? I was under the impression (maybe wrongly) that only the creditor can issue proceedings to recover the debt. clarification would be good before I go for the throats!!

Cy, have pm'd you.

heated

well I wouldn't call it a success, I still lost the original case.... but have not given up trying to find an inexpensive way of having another go at that, will let you know if I come up with anything.! lol One thing to note.... In my case at the hearing and in their evidence, Cabot claim not to be the creditor... they claim to have all the rights but none of the duties. I tried to argue if that was the case then they had no right of action without being joined by the original lender but didn't get anywhere with the Judge. In one of my oh's cases, they have got the agreement & it's all ok, however the debt includes PPi and charges which account for more than half the balance, I've written to them stating that we would be happy to make arrangements to pay but first they need to get the balance correct and provide proof that they own the debt, and in what capacity, i.e. are they now the creditor.... well, we've written 3 times now disputing the balance and asking the same questions.... surprisingly enough they will not answer the question about being the creditor, and as for the PPi & charges, they just keep telling us to go back to the OC. My argument is... if they bought the debt it is their responsibility to ensure that they are collecting the right amount, and as they now own it, it's up to them to investigate and correct the figures, still waiting for a response to that one. In the second case (which they bought at the same time as my debt) I had done a CCa req last year & put the account in dispute. didn't hear a thing more until yesterday when they sent a set of statements, a dodgy letter that they say came from the OC (yeah right!) saying the account was sold to Cabot ( not cabot financial uk or Europe, just cabot) and a badly copied set of T&C along with a statement showing the interest they had added since buying the account.... they have continued adding interest even when the account was in dispute. They now claim to have fulfilled their obligations under CCA and are demanding payment on that one. am writing back to say T&C does not make executeable agreement & account still in dispute, but have a sneaky feeling they are going to try & litigate that one.

Sorry it's taken so long to get back, no computer for a while! At the hearing the rep for Cabot withdrew the application in light of the points made in my defence, namely that they were being sneaky by applying for an order whilst at the same time giving me a 14 day time limit to come up with repayment offer (which they had accepted) but they went for the order anyway. Judge told them....I should think so too and congratulated me on a "marvelous defence of my propery!" lol I enjoyed that bit! I asked at the hearing about the removal of the interrim charge order, and was told that I didn't have to do anything and it would be removed. surprise surprise.... it hasn't, and according to the Land registry there ahs been no communication from Morgans to ask for it's removal. I can apply myself, but would have to wait whilst the Land registry then get in touch with Morgans to confirm! More wasted time. Wasted costs? never thought of that.... I'm actually snowed under atm trying to fight Cabot for my husband now.... it seems they have just bought up his debts..... they seem determined to get my house one way or another.

quick update. had my day in court. gloves off this time, no more nerves, no more being bullied by the big guy. NO charging order, Interrim charge order removed. no costs.

beat them at the hearing. interrim charge order removed no costs.

still haven't received anything from the court

Hi Beau, there was a discussion at the hearing as to the wording of the judgement, and Morgans solicitor said that there was no need for a 14 day stipulation as they would be in touch to arrange suitable repayment, so the judge made an order WITHOUT any stipulation as to when it should be paid by. Also, on leaving the hearing their solicitor said they would be in touch, so I waited to hear from them. The 1st contact from them was this letter giving me 14 days, ( which they dated friday 18th but was not received until tues 22nd) they then didn't bother waiting for a response and made the application to the court on the 24th.

lost a judgement brought by Cabot financial, and they have obtained an interim charging order on my house, ( for no aparent reason other than bloody mindedness and increasing my debt).... wrote to me after the hearing and gave me 14 days to respond with a proposal to pay off, but applied to the court for the order only 6 days after the date of writing of the proposal letter. court has granted an interim order with a hearing in August..... so where do I start?

quick update, & warning to others...... having been unable to afford to appeal the descision of the DJ I resigned myself to having to pay the Judgement. At the hearing the solicitor for the otherside told me that they would be in touch to arrange a suitable repayment shcedule. I received a letter from Morgans dated 18th june giving me 14 days in which to contact them with my offer for repayment. I wrote back on 25th of June with my offer & waited for a response. Having still received no reply by yesterday, I telephoned their office, and was told that they hadn't received my letter, (surprise, surprise) I went over details of my income & expenditure & re stated the offer I had made in writing, which was accepted and agreed. At the end of the conversation is when the shock came. As the person on the other end was telling me that they would send confirmation of the agreement out in the post, he calmly said to me, "you do know that we have a charging order on your house don't you?" Morgans have outdone themselves the sneaky b*stards, they applied to the court behind my back on 24th June for an interrim charging order which, according to the court was granted on 7th July with a hearing scheduled in August. Apparently, I will be liable for the cost of this application, and the subsequent hearing, and these will also be added to the debt that they shouldn't be getting from me either...... Life is a BITCH

thanks Beau It's the possibility that they could win the next round and saddle me with a huge amount of costs that is putting me off atm... (something I was protected from to a certain extent in the first place because it went through as a small claim - although they still managed to add on over $500) I know that they are in the wrong... but proving it and getting a Judge to listen to you without pre judging is another matter entirely.

I'm going to wait for the judgement to arrive, then I will post it up and see where to go from there. I found the whole hearing on Friday annoying, frustrating and ultimately soul destroying.... I blame myself as much as anyone else. I was so nervous and short of confidence that I took a Mckenzie friend, a retired solicitor with me who clearly hadn't listened to a word I had said over the last 2 months, and pretty much made a real fluff of it. when it came to the crunch, I think I would have done better myself... so it's pretty much my own damn fault.

I just don't have the money to do that.

HI all sorry to say, after a 5 hour court session, yet again Cabot won the battle. (didn't feel much like posting last night) the Judge seemed to see nothing wrong with the fact that they could not prove what date I had applied, and had in fact pleaded 2 different dates (neither of which was correct) accepted their argument that there was no need for a default notice, that the amount was all arrears accepted their argument that they were not the 'creditor' but could still take action against me accepted the T&C as an executeable agreement accepted a totally redacted deed of sale with NO identifying info related to the sale of My agreement accepted, that entry on a computer log is proof of production, posting and service of a notice of assignment... you don't have to receive it for it to be served. accepted the totally fictitious letters that they said were sent by Vanquis... (giving details of the wrong date for me opening the account, very precise, even giving a time, but totally wrong and supposedly enclosing T&C's) even though I had the original letters that were really sent, ( offering me a refund of charges) completely ignored the section 61a part signed by debtor and creditor and said the tick box electronic signature was enough for that.'otherwise every agreement signed online would be unexecuteable' in his judgement he was keen to point out that although he was careful to apply the law,(yeah right) he was glad to be finding in their favour.... 'you had the card, you spent the money.' which I'm sure influenced his decision to ALLOW s69 interest on top.... ' yes I know it's discretionary, but they've been denied their money.' was all he said:evil: so... all in all a pretty cr*p day.

thank you for all your good wishes..... heading off to court now... will let you all know asap.

thanks for that PT, will try to find that

URGENT!!!!! court tomorrow morning... and a huge skeleton argument has arrived in the post this morning. "issues" according to them are as follows:- did I sign a document online that contained all perscribed terms did the assignor on request provide a true copy of the executed agreement containing all prescribed terms does the claimant have any duty to comply with a s78 request does what they have provided constitute a true copy in any event Is the claimant the legal assignee of the agreement between the Assignor and the defendant was notice of assignment given to the defendant was there any requirement to send a default notice. ok... so case authorities... Carey V HSBC [2009] EWHC 3417 (QB) McGuffick V RBS [2009] EWHC 2386(comm) Linden Garden Trusts LTD V Lenesta sludge Disposals ltd [1994] 1 A.C. 85 Kinch V Bullard [1999] 1 FLR 66 submissions . in relation to 1 Claimant has adduced sufficient evidence to show that the defendant signed the credit agreement online as claimed. a signature may be electronic for regulated cca's and it was the assignor's discretion as to how such signature was provided by the defendant. Assignor has provided reasons why there is an absence of Hard copy application form. Letter provided by the assignor, dated 8th sept 2009 describes the online process & it is clear that the defendant signed the agreement by ticking the appropriate boxes indicating that she had read the 'full terms & conditions' The latter is sufficient to render the terms contained within one document, cumulatively, the agreement. In relation to 2 Evidence shows defendant made a request for 'application information' from the assignor under cover of letter dated 8/9/09 assignor provided terms and conditions 'initially sent with welcome pack' Inference to be drawn is that assignor sent to the defendant a copy of the executed credit agreement after her online application, compliant with s63 of the Act letter dated 8/9/09 and copy of the t&C constitutes a true copy of the agreement * see submissions in relation to 4 All of prescribed terms are present in relation to 3 the claimant had no duty to comply with a request made under s78(1) the claimant has no such duty as they are not the creditor as defined by s189 Claimant are legal assignee's and it is trite law that the burdens of a contract can never be assigned without consent if this analysis is correct and claimant had no duty under s78(1) then it is submitted that the claimant has provided sufficient proof for the purpose of this hearing on the balance of probabilities. in relation to 4 what the claimant has provided is what has been provided to them by the assignor if it is found that in relation to the fourth submission (above) that the claimant is correct in their analysis then it must follow that the claimant has complied with the s78(1) duty by providing a true copy of the executed agreement containing all of the prescribed terms in any event. if it is found that in relation to the fourth submission (above) that the claimant is incorrect in their analysis the claimant would rely on their proposition that they as legal assignees had no duty to supply the copy as requested. Claimant would further contend that the purpose of s78(1) is not proof of this claim, but the purpose behind the section is the provision of information, then the evidence adduced is sufficient in any event to prove their claim for the purpose of these proceedings. in relation to 5 Evidence adduced is sufficient to show account has been assigned to them. In relation to 6 notice of assignment may simply be notice in writing under hand. There are not other prescribed requirements as to Notices of Assignment Service of the NOA is sufficient if left at the Defendants address. Sending the NOA by ordinary prepaid post is a valid method of service in order for the NOA to have been left at the defendants address. Legally the defendant does not actually have to recieve the NOA for service of it to be validly effected Evidence shows that the NOA was created and sent to the defendants address. In relation to 7 No requirement to send a default notice. Circumstances in which it is necessary for a default notice to be sent are not applicable on the facts. Assignor as their remedy in this matter chose to assign defendants account to claimant. There is no Legislative provision or other rule which the claimant is aware of proscribing the Assignor from doing so. Defendant contractually agreed that the assignor could assign the account at any time. no duty on claimant to send a default notice as they are not the creditor as defined by CCA1974 for reasons previously given. Duty binds the creditor. Even if the claimant is the creditor, they have chosen not to exercise any of the remedies under s87(1) thus meaning that service of a default notice was not required. Claimants claim is for arrears only, and there is no duty for the claimant to send a default notice in such circumstances. Summary Both as to law and fact the claimant is entitled to succeed their claim for the reasons given Defendant has alluded to Parliament's intention in enacting the CCA1974. It is accepted that protection of consumers was the intention. It was not Parliaments intention that anybody should benefit from a windfall when a valid claim has clearly been established against them. Any helpfull comments, or links would really be appreciated.... Note... letter of 8/9/09 was never received ( or even sent) to me

I've been reading 'til my eyes hurt! On reading steven4064's great thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html Can anyone offer a little more clarification on this snippet in relation to properly executed agreements, and where I could get more info.... the reason I ask is that from day 1 of the statements provided to me the interest charged on my account bears no relation to the figures quoted in the T&C provided.... so would that mean that the agreement is improperly executed?

It wasn't taken as such either! tbh, my post was more a case of thinking out loud! I agree with what you said, I too have gained huge amounts of knowledge since joining this site.... but my life is such that anything that can possibly go wrong, usually does, with bells on.... so I try to be absolutely certain that I have covered all bases, and fully understand everything.... I appreciate you taking the time out to help. as usual... you are so right!..... oh, and thank you for the birthday wishes for my dad! had a great day/night:lol: