CCA 1974 black hole

[mikeymack2002]

I am curious how this case has been dealt with see here >> http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

 

 

My questions in this Judgment are at para: 10-17 in the above link... Especially para: 17 your thoughts please... As this is driving me mad atm. Can anyone please give thoughts..

 

 

PS not sure where to post this thread, sorry..

 

 

MM

[Ford]

17 - basically saying that an (proper) assignment is valid, and the assignee becomes the 'creditor'. and entitled to sue. 'In the light of that conclusion Ground 1 does not arise since Link, as legal assignee, is a creditor under the 1974 Act. As such, the main points made by the Appellant on this issue fall away..' ie no black hole.

[mikeymack2002]

2 of us have lost our minds over this one, I will spend more time reading in much more detail..

 

 

Thx

[Peterbard]

This extends to the transfer of the rights under an agreement being transferred, under the law of property act 1925.

 

When agreements are (sold ) to a DCA, what in fact happens is the rights to recover funds is transferred under the Law of Property act 1925, however any duties under the agreement are not. It is common law that duties under a contract cannot be transferred. In fact the agreement is not sold this is just shorthand the rights under the contract are assigned.

 

The proposition was put to the court that because the duties cannot be assigned, the DCA could not enforce, as he did not posses those duties and was therefore not the creditor.(The CCA says that the definition of creditor is someone who posses both rights and duties under a contract, it also says that only a creditor can enforce).

 

The court found that although this was absolutely correct, the "duties" which were referred to in the CCA were not duties under common law but duties under the statute (cca 1974) These can be transferred. In consequence on absolute assignment the DCA would be responsible for issuing default notices notices of arrears etc. it also meant that the assignee (DCA ) was in fact the creditor and therefore could take action to enforce the agreement.

[Peterbard]

Sorry in particular this explains section 17.

 

the assigned debt cannot be enforced without the duties being passed to the DCA so it would fall into a "black hole".

However this was shown not to be he case in the final deliberation for the reasons stated above.