Robinson Way and co

[ODC]

This same old tripe from RWC.

 

If they are saying that the debt is a simple assignment under the Law of Property Act then they cannot take legal action against you it would have to be the Original Creditor. If of course it is an ABSOLUTE assignment then the ARE the Creditor as defined by S189 of the CCA 1974. That means the have the same rights and DUTIES as the original creditor. However they are still obliged under S 175 of the CCA to pass your CCA request to the original creditor.

 

They are strictly true that even if the debt were UNENFORCEABLE then the debt may be still owed just that they could not force you to pay it if you refused. The real clue is in the last line where they are offering a reduced settlement. They could not do this if the alleged debt was only a simple assignment.

 

 

I hope that makes sense

[42man]

Ask them which Law of property they are quoting from ? It makes no difference anyway as without the correct paperwork, they would be stuffed anyway....

Originally Posted by CCA 74 s77 (1)

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.

Quote:

Originally Posted by CCA74 s189(1)

“ 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

Quote:

Originally Posted by CCA74 189 (1)

“ 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;

 

Quote:

Originally Posted by LoP s136

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:

 

[shakespeare62]

I think we need to get a quick handle on the situation. From what we know :-

 

1) There is a CCJ for this account

 

2) Robinson way are apparently aware of this - because on your first posting they were threatening to apply directly for enforcement / attachment of earnings order

 

3) Robinson Way have sent you a Notice of Assignment (although without seeing a scan of it we can't be sure it's correctly stated etc.)

 

You need confirmation from the original creditor (Barclays) that the debt has indeed been assigned to Robinson Way.and whether it is an absolute or equitable assignment.

 

This can be done via a cover letter, and a SAR. The SAR should also give you useful information regarding balances - statements, Deed of Assignment copy, copy of the CCJ (or the Court Reference no.) etc.

 

You also need to get a 'holding letter off to Robinson Way. Tell them, you have written to the original creditor requesting confirmation that the account has been sold to Robinson Way and that you are waiting for a reply.

 

Also state with reference to Civil Procedure Rules, Pre - action Behaviour requirements , you are requesting Robinson Way to supply you with a breakdown of the alleged debt they are claiming , including any charges.

 

Finally state - should they commence proceedings without allowing this matter to be reasonably resolved outside of Court, you will show this correspondence to the District Judge on the question of costs.

 

----------------

 

That should hold 'em off. Send everything by recorded delivery if possible. (Even it its not signed for - you'll have proof of posting). Send the SAR by Special Delivery. At the very least obtain a Certificate Of Posting (free stamped slip from the Post Office)

 

What we are after here, is to establish if Robinson Way do indeed own the debt (and not just 'picked up your details out of some dustbin').

 

If they do own the debt, then your fallback position is to make a without prejudice offer of payment providing interest is frozen. Again ..it is easy to do, the objective is to deny them their costs, pay at a rate you can afford (keep it simple and don't divulge all your details). We can discuss these tactics later - but they are very effective. Keep everything in writing. Don't talk to them on the phone.

 

Finally, the above advice from 42Man and ODC is excellent. I'm concerned tho' that we don't allow Robinson Way to 'put one on you' as a CCJ has been issued.

 

Anyway I hope they'll correct me if I'm wrong, the more advice you get the better ....

 

Tactics so far have been good.

Edited February 13, 2009 by shakespeare62
edited typos

[ODC]

Actually I dont know whether RWC are aware that there is a CCJ in existence. The threats of enforcement and deductions of earnings are Standard Bovine Excrement that they use all the time. If they were aware of the CCJ they would not be spouting on about agreements and the Law of Property hogwash nor would they be offering to settle for a redusced sum. What I am sure the OP has is standard threatomatics from RWC

[shakespeare62]

Actually I dont know whether RWC are aware that there is a CCJ in existence. The threats of enforcement and deductions of earnings are Standard Bovine Excrement that they use all the time. If they were aware of the CCJ they would not be spouting on about agreements and the Law of Property hogwash nor would they be offering to settle for a redusced sum. What I am sure the OP has is standard threatomatics from RWC

 

Good point - I dare say they don't know their a** from their elbow when it comes to agreements. As you say all they've got is 'Threat-O-Matic'.

 

I think there is still a risk over the CCJ. The trick is not to admit liability to Robinson way. I don't think my suggested letter does that. It buys time - while finding out the facts. Faichfold could still turn round and tell its hogwash if he's sure.

 

My letter is one option. you guys may have other letters / tactics to suggest. I liked both your comments and have noted 'em down for reference....

Edited February 12, 2009 by shakespeare62
edited typos

[shakespeare62]

Another point is, that the last Barclays knew about Faichfold was that he was a student, probably not a householder at the time, no assets, savings or property (no disrespect to students) and paying £1.20 per month. Also the account has been dormant for 5 years.

 

On the strength of that information, Robinson Way have probably bought the debt for £10 - £20. So £200 or £300 would be a nice quick return...rather than going to Court for another £1.20 per month (where they would lose their costs if he offers it as proposed etc.) I'm just guessing here ....

[shakespeare62]

Anyway as 42Man and ODC mentioned ..no harm in telling them they have a duty under s175 to pass the request to the original creditor if they are acting as an agent, or under s189 if they are the creditor to supply the agreement .....it will only serve to confuse them The main factor here is that a CCJ has been issued - which Robinson Way may or may not know about...

[faichfolds]

Than

Edited August 6, 2009 by faichfolds

[ODC]

An SAR request costs a tenner.

 

42 man brought up an excellent point. If they claim they are not the CREDITOR as defined by s189 of the CCA then you cannot possibly be the debtor. RWC are trying to muddy the waters by using the Law of Property Act so just you use it against them. If they want to play silly beggars then you can play the same and you will get a lot of help on here to answer everything they come up with.

 

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

Quote:

Originally Posted by CCA74 189 (1)

“ 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;

[faichfolds]

Sor

Edited August 6, 2009 by faichfolds

[shakespeare62]

I think ODC is saying you can reply to them, and query their 'claim to have been assigned the rights but not the duties' in relation to s189.

 

This could form the basis of the 'holding letter' to Robinson Way while you send off your SAR to Barclays Bank. You could save the request fo a breakdown of the alleged debt amount and charges etc.for a later letter if you need it.

 

You could possibly something along the lines of ...

 

------------

 

"Dear Sir / Madam

 

I refer to you letter dated xxx, received in response to my previous requests for information.

 

In paragraph (3..) you claim to have been assigned the rights but not the dutes of the creditor under s189 (1) of the Act. You will be aware however that a creditor is defined in section 189 (1) of the Act as someone who has been assigned both the rights and the duties of an agreement.

 

Under the Act, you cannot claim to be a creditor who has been assigned the rights but not the duties of an agreement. This would be misleading.

 

In relation to the above, may I please draw your attention to s.5(2), 5 (3)(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008 and the Office Of Fair Trading (OFT) Debt collection guidance (July 2003).

 

If however you are claiming that you are acting on behalf of a creditor then Office Of Fair Trading guidelines dictate that the creditor must inform me that you will be acting for them and in what capacity. This clearly has not happened. s175 of the Act would also place a duty upon you to pass on my section 78 request, along with the payment to the creditor.

 

I look forward to your early response and to receiving the information I have requrested.

 

Should you ignore my efforts to resolve matters and commence proceedings, I will show this letter to the District Judge on the question of costs.

 

Yours faithfully "

[print your name - Do not sign it)

 

 

------------

 

 

 

Hope this helps ....it's just a suggestion ....tweak it as needed .

Edited February 13, 2009 by shakespeare62
edited typos

[faichfolds]

th

Edited August 6, 2009 by faichfolds

[faichfolds]

T

 

I r

Edited August 6, 2009 by faichfolds

[shakespeare62]

This is the letter that I posted.....

 

 

ACCOUNT IN DISPUTE

 

 

I ACKNOWLEDGE NO DEBT TO YOUR COMPANY

 

 

 

 

Dear Sir / Madam

 

I refer to you letter dated 9th Feb, received in response to my previous requests for information.

 

In paragraph (3..) you claim to have been assigned the rights but not the duties of the creditor under s189 (1) of the Act. You will be aware however that a creditor is defined in section 189 (1) of the Act as someone who has been assigned both the rights and the duties of an agreement.

 

Under the Act, you cannot claim to be a creditor who has been assigned the rights but not the duties of an agreement. This would be misleading.

 

In relation to the above, may I please draw your attention to s.5(2), 5 (3)(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008 and the Office Of Fair Trading (OFT) Debt collection guidance (July 2003).

 

If however you are claiming that you are acting on behalf of a creditor then Office Of Fair Trading guidelines dictate that the creditor must inform me that you will be acting for them and in what capacity. This clearly has not happened. s175 of the Act would also place a duty upon you to pass on my section 78 request, along with the payment to the creditor.

 

 

If you feel you are unable to do this, then I should like to write to the alleged creditor, but not having their address poses a problem. Perhaps you could furnish me with this address at your earliest convenience.

 

I look forward to your early response and to receiving the information I have requested.

 

Should you ignore my efforts to resolve matters and commence proceedings, I will show this letter to the District Judge on the question of costs.

 

 

I should also like to point out that whilst an account is in dispute, you have no right to process any data regarding this matter, and as I have not entered any financial agreement with your company, you should NOTbe passing any data on to credit reference agencies.

 

 

Please find again enclosed the statutory fee of £1

 

 

I will not enter any more correspondence with you until you have provided me with the information that I have requested.

 

 

Yours faithfully

 

That's good enough for now. Personally I wouldn't be offering to do any of the duties they are required to do (under s.175), however your requests for information as to the status of their position are valid and important requests, in terms of Civil Procedure Rules - pre action behaviour requirements, you are trying to establish if they really have a cause for action - they're misleading you in terms of assignment duties doesn't help their claim.

 

You could send the SAR addressed to The Company Secretary of Barclays Bank at it's Registered Office

 

remember to state at the end of the SAR quote :

"IF YOU UNABLE TO DEAL WITH THIS REQUEST, YOU SHOULD IMMEDIATELY FORWARD IT TO THE PERSON WITHIN YOUR ORGANISATION RESPONSIBLE FOR DATA PROTECTION."

 

The Registered dddress for Barclays is (I've checked it with Companies House ) :-

BARCLAYS BANK PLC

1 CHURCHILL PLACE

LONDON

E14 5HP

 

Other address details for Barclays are shown on this CAG post :-

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/208-email-contact-details-barclays.html#post622510

 

Let us know when you hear back ...

Edited February 17, 2009 by shakespeare62