Lop 1925 Assignment Question

[miliitant]

Section 136 LPA 1925 is silent as to how the notice should be served. The default statutory provision is found under section 196 LPA 1925. It provides that if notice is given to the other party by registered letter and is not returned undelivered, it will have been deemed to have been served. This means that whilst notice may be given expressly in writing, it will not be deemed served unless it has been sent by registered post.

THIS SUBJECT HAS BEEN DEBATED AND DEBATED

now when a dca is assigned an account, to be a valid assignment does the

NOA HAVE TO BE SENT BY REGISTERED POST AS ABOVE BEFORE THE DCA START TO HANG DRAW AND QUARTER

i myself would keep silent and use the above in court but there has been talk on a European directive

do we have any definitive answers or does case/statute law still backs up the LOP 1925

[Curlyben]

Re: Lop 1925 Assignment Question

Yes.
I have had cases thrown out due to non-compliance with assignment.

Also the NoA should come from the OC and NOT the DCA as is fairly normal.
Should the need arise this can be added to the other inconsistencies and breaches by the DCA

[miliitant]

Re: Lop 1925 Assignment Question

MANY THANKS FOR THE CONFIRMATION

so i take it a dca cannot claim contractual interest then until the assignment is properly served

so where does that take up with a dca registering a default under there name when they have no official standing on the account until the assignment has been ratified

ime thinking woodchester and woolwich on this one

[labman]

Re: Lop 1925 Assignment Question

Yes.
I have had cases thrown out due to non-compliance with assignment.

Also the NoA should come from the OC and NOT the DCA as is fairly normal.
Should the need arise this can be added to the other inconsistencies and breaches by the DCA

How does that stand alongside 16.2 of the Consumer Credit Directive August 2010?

16. ASSIGNMENT OF RIGHTS
16.1 W
here any rights of a creditor under a consumer credit agreement (for example the right to be repaid the money) are sold or transferred to a third party, notice of that assignment must be given to the borrower as soon as reasonably possible, except in the circumstances described below. This requirement applies to all regulated consumer credit agreements other than agreements secured on land. This requirement is in new section 82A of the CCA43.
16.2 I
t is the responsibility of the assignee (the creditor acquiring the rights) to ensure that notice is given. However, he does not have to give notice himself, but can agree with the assignor (the creditor assigning the rights) that the assignor will give notice instead, depending on what is more sensible in the circumstances. It is important, however, that notice is given as soon as reasonably possible and in a way that is clearly understandable by the borrower.



This would seem to suggest that it does not have to be the OC who produces the NOA.

Does anyone have any clarification on this?

[Curlyben]

Re: Lop 1925 Assignment Question

a dca cannot claim contractual interest then until the assignment is properly served

AND there is a clear provision for this to happen.
Remember DCA's normally get involved AFTER the agreement has been terminated so the matter of interest is a knotty one..

As for the default the same applies.
While it is acceptable for the (new) owner to update the information, unless it is correctly assigned then they have no right to do so..
This would be by absolute assignment, not equitable (legal) assignment.

[Curlyben]

Re: Lop 1925 Assignment Question

Labman, if the DCA is claiming assignment under LoP s136 then the OC DOES have to give the NoA.
It all depends on how it's been assigned..

[miliitant]

Re: Lop 1925 Assignment Question

good stuff

[Curlyben]

Re: Lop 1925 Assignment Question

Have a read of this: Debt purchasing and assignment - Legal Beagles Consumer Forum

[labman]

Re: Lop 1925 Assignment Question

That makes absolute sense CB thank you. Shame it rather muddies the waters though, as we now have to look not only at the validity of the assignment itself, but also the fact that how it is assigned affects the validity of the assignment.

Does that make sense?

[Sparkie1723]

Re: Lop 1925 Assignment Question

Banking & Finance Update

I have collected these little snippets about Assignments, maybe of some use

Banking & Finance update

17 April 2009

• Assignment of debt - acquiring a participation by way of assignment of debt, instead of by sub-participation, by which the equitable or legal interest of the original lender in the loan is assigned to an incoming lender. In relation to this method, it is important to note that:
  • part (as distinct from the whole) of a debt may not be assigned at law, only in equity, and accordingly if the incoming lender is concerned to ensure that the debt is assigned to it in law and that after such assignment occurs the incoming lender is not reliant in any way on the original lender in order to receive, or enforce its rights to receive, payments of principal, interest and fees from the borrower, then this method is not optimal, in particular if the original lender is seeking to dispose of only part of its participation in the loan as distinct from its whole participation;
  • only rights may be assigned at law, not obligations, and accordingly if the commercial agreement between the parties is for the incoming lender to acquire both the original lender's rights and obligations, and for the original lender to no longer retain those corresponding obligations, a tripartite assignmentand assumption agreement would need to be entered into between the original lender, the incoming lender and the borrower reflecting those arrangements; a legal or statutorily perfected assignment of debt must fulfil certain requirements,including the provision of written notice of the assignment to the corresponding debtor. Failure to notify a debtor, even in respect of an equitable assignment, may result in the assignment not having the net priority or effect that it was intended by the parties to have; and
  • with effect from the time of the assignment (whether the assignment is a legal or statutorily perfected assignment or an equitable assignment), the loan asset ceases to be an asset beneficially owned by the original lender and accordingly ceases to be available for distribution to its creditors in the event of a winding up of the original lender. This, however, is subject to a similar qualification as is discussed corresponding to novation above regarding the solvency of the original lender at the time the assignment takes effect.

The Goodridge Case: new facts not new law - 24 February 2010

“The novation and assignment issues are the issues which most readers of the case are likely to focus (even though they are not technically the substance of the decision). However, throughout the case there are other statements which are useful reminders of established legal principle. These include:
§ liabilities are ‘transferred’ by novation, not assignment


Sparkie

[labman]

Re: Lop 1925 Assignment Question

Curlyben taught me the easy way to remember the main difference ages ago through one of his threads:

Equitable = rights

Absolute = rights and duties

Many with equitable assignments still try to pretend to act as the OC with their impotent threats, rather than on behalf of the OC.

[miliitant]

Re: Lop 1925 Assignment Question

Banking & Finance Update

I have collected these little snippets about Assignments, maybe of some use

Banking & Finance update

17 April 2009

• Assignment of debt - acquiring a participation by way of assignment of debt, instead of by sub-participation, by which the equitable or legal interest of the original lender in the loan is assigned to an incoming lender. In relation to this method, it is important to note that:
  • part (as distinct from the whole) of a debt may not be assigned at law, only in equity, and accordingly if the incoming lender is concerned to ensure that the debt is assigned to it in law and that after such assignment occurs the incoming lender is not reliant in any way on the original lender in order to receive, or enforce its rights to receive, payments of principal, interest and fees from the borrower, then this method is not optimal, in particular if the original lender is seeking to dispose of only part of its participation in the loan as distinct from its whole participation;
  • only rights may be assigned at law, not obligations, and accordingly if the commercial agreement between the parties is for the incoming lender to acquire both the original lender's rights and obligations, and for the original lender to no longer retain those corresponding obligations, a tripartite assignmentand assumption agreement would need to be entered into between the original lender, the incoming lender and the borrower reflecting those arrangements; a legal or statutorily perfected assignment of debt must fulfil certain requirements,including the provision of written notice of the assignment to the corresponding debtor. Failure to notify a debtor, even in respect of an equitable assignment, may result in the assignment not having the net priority or effect that it was intended by the parties to have; and
  • with effect from the time of the assignment (whether the assignment is a legal or statutorily perfected assignment or an equitable assignment), the loan asset ceases to be an asset beneficially owned by the original lender and accordingly ceases to be available for distribution to its creditors in the event of a winding up of the original lender. This, however, is subject to a similar qualification as is discussed corresponding to novation above regarding the solvency of the original lender at the time the assignment takes effect.
  
  

The Goodridge Case: new facts not new law - 24 February 2010

“The novation and assignment issues are the issues which most readers of the case are likely to focus (even though they are not technically the substance of the decision). However, throughout the case there are other statements which are useful reminders of established legal principle. These include:
§ liabilities are ‘transferred’ by novation, not assignment


Sparkie

HI SPARKIE

where does this gem above on rights and obligations with the tri partite agreement come from

link would be nice

[Sparkie1723]

Re: Lop 1925 Assignment Question

HI SPARKIE

where does this gem above on rights and obligations with the tri partite agreement come from

link would be nice

Not sure which link I got it from ...but if you search under Banking and Finance update 2009 you will find lots of useful info there.

Is this of interest and help...
Equitable assignment of an equitable chose:Where a chose is merely equitable and where the whole of the interest is vested in the assignee (ie it is an absolute assignment), equity has always permitted him to sue in his own name without joining the original creditor (see, eg Cator v Croydon Canal [1834] 4 Y & C Ex 593; Fulham v M’Carthy [1848] 1 HLC 703); for the chose existed only in equity and so equity was free to hold that the assignee was the sole owner and no interest remained in the original creditor (see McMurchie v Thompson [1906] 8 OLR 637 and 639). Although there is no authority precisely on the point, it seems that an equitable assignee of an equitable thing in action must join the assignor where the assignor retains an interest in the thing in question

Sparkie

[ODC]

Re: Lop 1925 Assignment Question

The usual notice of assignment from a DCA arrives is the same envelope as their hello letter. It's generally a **** poor copy of the OCs own letterhead but strangely contains DCA barcodes and matrix along with obvious clues.

I assume these are not worth the toilet paper they are printed on

[miliitant]

Re: Lop 1925 Assignment Question

hi odc

dlc or hillisden are well known for that as well as capquest

be interesting to nail down the legality of this lazy practice by the dca though