Law of Property Act 1925

24CTU

Hi Everyone,

This is my first posting on the forum but i have been an avid reader for the past few months, i decided to deal with all my debts a while ago and contacted all my creditors to negotiate re-payments, after reading some of the posts on here i started to request CCA's, several i have received and several i have not, i have since received a letter from one of my creditors who failed to send a CCa saying that the original creditor sent all paperwork to me and that i should starts to make payments.

I replied that no information was received and that as they did not supply the CCA within the time frame allowed the debt became unenforceable and that they were not allowed to pass on my information to anyone else, i requested that they remove all my information from there systems.

There reply has just arrived and reads the following:

We advise that this debt has been legally assigned to us and that our assignment is an assignment of rights and not of duties of the original 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 copy documentation. You are however within your rights to contact original creditor.

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

Even if you were to demonstrate that there was a failure under the Consumer Credit Act by the original creditor, rendering this account unenforceable, this does not mean you do not owe the sum due.

Accordingly we would request that you continue to make regular payments of your outstanding debt. Alternatively we may be able to discuss favorable terms to settle this account at a reduced rate.


Any advice on this letter would be greatly appreciated, or can someone explain the Law of Property Act 1925.

Sorry this post is long.

24CTU

Can anyone help?

just a little unsure what there letter means.

Lensman_2

What is the name of the company that wrote the letter? Metropolitan, for example, are HSBC's in house collection agency. They acted for HSBC while the debt was still owned by HSBC.

The wording of the letter appears to admit defeat here however. Most of the tougher DCAs would be threatening County Court proceedings within 7 days in this reply. Instead, I think they are saying - "but you still owe us the money so please be nice and pay us something".

They are right. You still owe them.

If they have admitted defeat, you may get good terms for a !!!!!!.

24CTU

Hi Lensman

The letter is from Robinson,Way & Co, i agree that the debt still needs to be paid, but i was unsure about there jargon used, would your advice be to offer a !!!!!! and if so what percentage do you think i should offer, all my other !!!!!! have offered there own settlements so never made first move before.

Lensman_2

I would put the ball in thier court. Write to them saying that you have come in to some spare money and that you are negotiating with other creditors for FFFs. An attractive settlement offer from them would help to secure their little bit of your cash. Tell them you look forward to their offer in due course

Lensman_2

From:
http://www.ico.gov.uk/ESDWebPages/search.asp

Registration Number: Z5395514
Date Registered: 11 May 2001 Registration Expires: 10 May 2009

Data Controller: ROBINSON, WAY & COMPANY LIMITED

Address:

LONDON SCOTTISH BANK PLC
201 DEANSGATE
MANCHESTER
M3 3NW

Other Names:
EXPRESS DEBT COLLECTING SERVICES
HIGHLAND SOLUTIONS
CHASE SOLUTIONS

fermi

That's the usual letter from Robinson way where they attempt to mislead you over their obligations. :rolleyes:

A response along the lines of the one below (courtesy of pt2537 ) is normally the way to go.

Delete bits that don't apply to the letter you received.

Dear XXXXXX

Acc No XXXXXXXXXXXXXXXXX

Re: Statutory request pursuant to Consumer Credit Act 1974

Thank you for your letter dated xx/xx/2008, the contents of which are noted. I must draw your attention to the fact that this account is subject to a serious dispute.

On the xx/xx/2008 I wrote to your company requesting that you provide a copy of the written contract, in this case the credit agreement upon which this debt, which you claim a right to recover is based. You will no doubt be aware that this debt is credit as defined within the Consumer Credit Act 1974 and as a result, pursuant to section 78(1) of the Act I may demand a copy of the credit agreement at any time as long as the statutory fee of £1 is paid.

Your response to my request leaves me a little confused, I must point out that it would appear that you have mis interpreted the law as your response has major inaccuracies within it

Firstly you state that you purchased the debt, and have the right to collect and add interest. Let me clear this up for you, you may have the right to collect or attempt to collect but any right to add interest would be based upon the contract. Since you cannot provide a copy of the contract, I would have to ask under what provision of law do you believe allows you a right to add outside of the written contract?

Secondly, you state that you are not the original creditor nor did you provide the original credit facility. Now then, either way, you have a duty to ensure that the correct documentation is provided.

If you are assigned a debt and the assignment is absolute, it would come within section 136 of the Law of Property Act 1925. Now surely you will be aware of the definition of “Creditor” within the consumer credit Act 1974, section 189(1) of the CCA 1974 states

"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

Therefore if you are claiming that the assignment is absolute you have the same duties as were placed upon the original creditor and MUST supply me on demand with a true copy of the original agreement. However, if you purport that the assignment is merely equitable and not absolute I.e. you have the rights but none of the responsibilities under the agreement, then I draw your attention to section 175 of the CCA 1974

175.Duty of persons deemed to be agents.

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith

So clearly, you would have a duty to pass my statutory request on to **CREDITOR** for them to supply the information, I would like to point out that the OFT guidelines on debt collection make it clear that all collection activities should cease while a reasonably disputed debt is investigated and you seem not to have placed the account on hold which Is in breach of those guidelines

Also since you cannot provide a copy of the credit agreement, this debt becomes unenforceable in law, furthermore, any rights to process my personal data and defame my credit file would be contained within the written contract, the contract which you do not appear to have!

I'm sure I don’t need to go over the vast amount of case law that has been before the Court of Appeal and the House of Lords but I will outline the facts from the Judgment of LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.

Clearly No Credit Agreement, containing the prescribed terms as per Consumer Credit Agreements Regulations 1983 Schedule 6 Column 2 and signed by the debtor, that can be produced before the court means the court cannot enforce the debt. This is mirrored in the following cases….

Wilson and another v. Hurstanger Ltd [2007] EWCA Civ 299

London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,

Dimond v. Lovell - [2000] Q.B. 216,

Rankine v Barclays Bank Plc [2005]

I'm sure your legal department will be aware of these cases, but should they not be fully conversant, then I can provide copies of the judgments


To clarify my position

I do not have any debt with your organisation, I do not acknowledge any debt with your organisation and I shall not enter into any negotiations to settle any debt you claim I have with your organisation.

Until such time that you can produce before me a copy of the credit agreement containing the prescribed terms in the prescribed form bearing my signature, I will not discuss this matter further. Further more, I put you on notice that any further attempts to collect this debt or any harassment by your company to coerce me into paying you monies before you provide me the documents that I requested, then I shall issue you a letter before claim, complying with the pre action protocol Para 4.3 placing you on notice that I will be issuing proceedings in the xxxxxxx County Court against your organisation seeking a judicial ruling pursuant to section 142(1) of the CCA 1974 to determine the validity of this debt. I must point out that the court has the power to discharge a debtor from their obligations under section 142 and I am advised that any action that I could bring under that section has an excellent prospect of success as the facts stand and furthermore I would ask the court to consider costs in this matter.

I again invite you to provide access to the original agreement showing that it contains the prescribed terms and is signed by both the original creditor and myself. If you are unable to do so, then I would invite you to give consideration to writing the balance off and closing the account.

I am mindful of the fact that litigation would lead to added costs and time on both sides and therefore I urge you to consider this situation and act accordingly, from the advice I have received it is clear to me that I have a good prospect of success based upon these arguments and I do not wish to have to press this issue before the courts unless totally necessary.

I respectfully request a response to this letter within 14 days setting out your position

24CTU

Thanks Lensman

I'll take your advice and write to them tomorrow,

24CTU

Thanks Fermi

Just trying to take all that in, i'll send that tomorrow,