Robinson Way ...and goldfish card debt

[brown owl]

Hi,

 

I wrote to Robinson Way asking for a copy of deed of assignment and also a copy of my CCA. They sent back my postal order for £1 and a strange looking letter that they state is a copy of a formal notice from them that they were the administator of the debt (March 2005). I have never sen this letter before and it certainly isn't a copy. It looks freshly typed and signed . The main letter is very difficult to understand. I hope you can clarify the situation please............

 

'We advise that this debt has been legally assigned to us and that our assignment is an assignment of rights and not the duties of the creditor under section 189(1) of the Consumer Credit Act. Our assignment gives us the rights to collect the debt; but we ourselves are not lenders, and we are not obliged to provide you with any documentation. You are however within your rights to contact G...Fish Bank Limited directly.

 

As legal assignee under section 136 of the Law and Property Act 1925, we are entitled to pursue for the sums due under the assignment. In addition we are also entitled to process your Data.

 

Even if you wre to demonstate that there was a failure under the Consumer Credit Act by G...Fish Bank Limited, rendering this account unenforceable, this does not mean that you do noy owe the sum due. We note that since our assignment in March 2005 you have made a payment in total of £324, and that you have never disputed any ownership of the outstanding debt. We therefore have a legal requirement to accurately reflect the account status within credit reference agencies.'

 

Then they ask me if I would like to discuss favourable terms to settle the account at a reduced rate

 

Its a bit legal for me to understand, any advice please?

 

Many thanks

[ThisVeryMoment]

Easy. They have no legal requirement to provide the copy agreement.

 

Why do you want a copy? Didn't you keep the original? Are you disputing the debt?

 

Best solution is to continue making payments and get this debt cleared off.

[clutchingatstraws]

Usual claptrap from these idiots. Don't worry . Is the debt a loan or credit card?

[brown owl]

Hi,

 

Thanks. It was a credit card.

[pt2537]

Hi There,

 

As CAS says, utter Ballhooks

 

im rather busy at the mo to offer too much info but suffice to say an assignment within section 136 Law Of Property Act 1925 is an absolute assignment and therefore they have all the rights AND DUTIES under the assignment

 

besides if its an equitable assignment as they suggest first off it is a fact that they have a duty under s175 CCA 1974 to pass on such requests so either way, they have to provide the info

 

i will look in later and if no one has posted a suitable reply to the idjits i will see what i can draft up for you

 

Regards

paul

[clutchingatstraws]

Suggest that you read through this thread, its quite long but deals with most of the letters you will get from these idiots. Good Luck.

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/71386-diskmandave-robinson-way-co.html?highlight=robinson+way+dmd

[pt2537]

HMM, We therefore have a legal requirement to accurately reflect the account status within credit reference agencies

 

yeah ok so under what act of parliament does this come from then:rolleyes:

[Newborn]

Oh dear, they are all confused aren’t they? They claim rights without responsibilities with one sentence then spout on about the LOP Act in another, which assigns ALL rights. Both claims are mutually exclusive.

But, however they put it, they have to comply with your CCA request or pass it on to the original creditor to deal with, even if they send your cheque back and claim they don‘t need to. If they then pass the 12+2 days you can stop paying them and they cannot ask you to pay. After a further calendar month they commit an offence.

Next they try to say that even if the debt is unenforceable they can still go after you. Yes they can but in writing only if you tell them to and you can put their letters in the bin. If they do find a CCA in due course then they would have to take you to court to enforce it and admit they didn't supply it in the first place (ie committed an offence).

Their last point about processing data is so they can keep the default on your record and claim that they can process your data whilst there is no CCA. This is not completely true but I am not an expert in this area.

Looks like you're in the driving seat!

If there is no CCA they can do nothing, not get a penny from you. If you do want to settle then use a 'Without Prejudice' approach and go for a vastly reduced figure (remember they pay 10% for your debt) BUT INSIST THAT THEY DROP THE ADVERSE RECORD ON YOU CRA ACCOUNTS!! and get it in writing!! Also insist that they agree in writing NOT to sell the residual debt on to another DCA. So when they do (they will!) you can take them to task. If they do not agree to those two points then you gain very little.

If you decide to take this route please, please post the letter on here before you send it so the experts (not me) can have a look at it first.

 

Newborn

[ScarletPimpernel]

May I suggest a look at my thread The Scarlet Pimpernel vs Robinson Way

 

This is from the last letter I sent them after they tried the 'rights but not duties' nonsense:

 

You state that Robinson Way, as legal assignees “acquired the rights but not the duties of the creditor under s.189(1) of the Consumer Credit Act” (I presume you mean the 1974 Act rather than 2006 since you do not state which).

 

I am sure you are aware that s.189 defines a creditor as ‘the person providing credit under a consumer credit agreement, or the person to whom his rights and duties have passed by assignment’. The legislation is quite clear - rights and duties - there is no element of choice, and it is not possible for only the rights to be assigned.

 

It worked for me!

[ScarletPimpernel]

HMM, We therefore have a legal requirement to accurately reflect the account status within credit reference agencies

 

yeah ok so under what act of parliament does this come from then:rolleyes:

 

I asked them just this, but despite reminders they never came up with an answer.

[brown owl]

Thank you so much for all your replies.......THIS SITE IS GREAT:D

 

Wish I had found it years ago. If someone could kindly post me a suitable reply, that would be wonderful !

 

Thanks all.

[Newborn]

Hi Brown Owl,

 

My understanding is that the only thing they want from you at the moment is 'to discuss favourable terms', (unless I've misread your original post).

As I see it you could now do nothing, pay nothing as there's no CCA and wait for their next move keeping us posted,

Or

You can negotiate to settle for a reduced figure. But please read my above post before taking this route!

You have to decide what you want to do before advice can be given and a relevant reply can be drafted.

 

Newborn

[Curlyben]

Oh dear RW&c do like to makes things up as they go.

 

What complete and utter contradictory bovine excrement.

 

 

 

 

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;

 

 

 

 

 

Ooops think they shot themselves in the foot there.

 

Now under this Act this is an ABSOLUTE assignment so they have been sold ALL the rights AND duties !!

 

To be a legal assignee the assignment would have to be

absolute whereby the rights and duties pass to the assignee.

 

Basically if they did indeed use LoP this means they are now the legal owner of the COMPLETE debt, rights AND duties

 

This is their admission that they know that they don't have a leg to stand on, yet they are trying to bluff it out.

 

 

Sooooo as they are now the legal owners of the complete debt CCA74 s77-79 comes into force.

 

This is a Cabot tactic with the rights but not the duties cobblers.

 

The creditor under a regulated agreement for fixed sum credit, within the

prescribed period after receiving a request in writing to that effect from the debtor and

payment of a fee of 15 new pence, shall give the debtor a copy of the executed

agreement (if any) and of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but

remains unpaid, and the various amounts comprised in that total sum, with the

date when each became due: and

© the total sum which is to became payable under the agreement by the debtor,

and the various amounts comprised in that total sum, with the date, or mode of

determining the date, when each becomes due.

 

Now s77-79 refer to the "creditor", this term is defined in s189.

“ 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;

Same applies to s78 and s79 aswell.

 

Now if they are saying that they aren't the creditor as defined by the Act the you cannot possibly be the debtor

“ 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;

Therefore there is NO debt to pay.

 

Hopefully this clears a few things up.

[ThisVeryMoment]

This 'expert' is wrong and does not understand current legal thinking. Before getting into the Law in depth you need to STUDY it, not read it on the net. Are you a Barrister? No. A Solicitor? No.

 

Would you want your house built by someone who spends all day on the net reading building manuals or employ a qualified builder with specialist and practical knowledge?

 

Get proper advice is my advice!

[brown owl]

Hi,

Following on from the above I sent them a letter as suggested.

Today I have received a letter from them stating that they have now asked for a copy of the cca from Barclaycard and they are expecting me to wait another 28 days even though they were out of time 11.1.07.

they state;

'Whilst, the allocated time has elapsed when you first requested the agreement, the account has been placed on a delay preventing any collection activity from taking place. we appreciate taht not being able to provide theb agreement within the 12 day period may mean that the account is unenforceable, however it does not mean that the debt is not owed. We therefore have a legal obligation to accurately reflect the account status with the credit reference agencies.

Finally we acquired the account by way of assignment and we believe we have the right to process your data. We believe there is no justification to your request for compensation.'

 

They have enclosed another 'copy' of their deed of assignment that was never received by me.

 

Any advice on what I can do now please ? Can I just say tough, your'e out of time ?

 

Thanks

[confused78]

well they're technically correct that the money is still owed even if it's unenforceable. However if you've told them you have no intention of paying and they continue sending letters you can complain on the grounds of harrasment. Also if there's no CCA then I would guess they CANT put defaults on your credit file although someone else will have to confirm/deny this.

[Curlyben]

Remember that No CCA = No Enforceable debt.

Yes it still exists, but without the agreement they CANNOT take any court action, so basically they are NOT in for an easy ride with this.

 

Now until they comply with your legal request you have nothing to say to them.

Of course keep us up dated and we'll advise accordingly.

[brown owl]

Thanks for that. Will let you know how things go.

 

Hopefully they won't find the CCA.

[brown owl]

Further to my other posts, Robinson Way have now sent a copy of my Barclaycard application. This is clearly not the CCA.

 

Also they are again stating the 'simple assignee' rubbish again. (Mind you simple is correct !)

 

Do I reply stating it is not the CCA ?

 

Thanks

[ODC]

Send them this that should cause their tiny brains to implode

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested ********supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ******** have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or *******, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards