DLC CCA request on purchased credit card deft

[MOTLEYMAN]

Hi All,
can anyone tell me if there is time limitation on providing the section 78 request of CCA. Reason for asking is in August 2011 received a letter of assignment from DLC as regards a credit card debt sold to them by lloyds tsb. Duly sent off the sec 78 request and waited. Received a letter from DLC acknowledging request stating that they would apply to the original creditor for the required information. They still havnt provided it but send me a letter each month stating that they are still awaiting info. This has now been going for 2 years so it appears they can't get the relevant information. Is there anything I can do to stop them or am I best leaving alone and hopefully in November 2015 the debt will become statute barred. Last payment made to lloyds was in November 2009. Also there is a PPI issue on this account. However I am a bit reluctant to start reclaim owing to:

1) debt being sold to DLC ,so who would I claim against as they own all the rights due to assignment letter
2) if it was lloyds who I could make the claim against would by doing this affect proof of ownership of this debt?
3) if there were monies owed to me would they pass it onto me or DLC?

Hope someone can help out with information. Many thanks

[Bill-K]

Re: DLC CCA request on purchased credit card deft

Hi MM,

1) Following a CCA s.77-79 request, while they are unable to supply a CCA compliant copy of the agreement, they are in breach of the CCA themselves and cannot enforce the debt. This unenforceability will continue until such time as they do actually comply with the CCA request. If the debt eventually becomes statute-barred, then it would then become 'doubly' unenforceable.

2) I'm not sure of the legal standing of this, but I do believe that if you reclaim PPI on this debt, then this will very likely be taken as acknowledgement of the debt, and it would be difficult to argue this. This would re-start the Statute-Barred clock at zero. However, if the debt is still unenforceable due to CCA non-compliance, then it should not affect this. The gamble here might be that Lloyds will then have an incentive to find the agreement and/or force you to show that such an agreement existed by providing copies of your own records to support your PPI claim, and you will need to keep your wits about you. Here be dragons...

3) There has been some argument about this. The FSA/FCA rules allow the Original Creditor to offset any PPI refund against arrears owing to them. However, if the debt is sold on ("Absolutely Assigned," I believe) to a DCA, then any arrears are no longer owed to them - but to the DCA. They have therefore sold the debt to the DCA for an agreed price - but as far as I am aware, the right to offset PPI against arrears is not transferred to the DCA by doing this, and I don't think there is an FSA rule which allows them to then pass any PPI refund to the DCA.

There is technically no time-limit on reclaiming PPI (and I have yet to see this successfully challenged) - so, if you wait until the debt has become Statute-Barred, and then reclaim the PPI - you will not be in danger of re-setting the SB clock. Between now and then, make sure that you have all the evidence you will need to show that PPI was charged - mainly your monthly statements showing this. If you don't have these, then sending a DSAR will not re-set the SB clock - but it may mean that they will find your agreement !!!

[labman]

Re: DLC CCA request on purchased credit card deft

I agree with everything you've said above Bill, you can guess the next word lol! ...... but ......

Am I right in thinking there have been a good few of these cases where the debt has been sold back to the OC for the pruposes of the ppi claim, the amount of ppi used to offset some of the balance outstanding, and then the debt reassigned in absolute to the DCA? I think I read about this somewhere, but could equally well have imagined it!

[Bill-K]

Re: DLC CCA request on purchased credit card deft

I seem to recall seeing this discussed a while ago, so your big but was well placed, I reckon, Labman. The legality of doing it needs checking, I guess - and that seems like something our resident CCA and/or DCA experts might be able to help out with. Unless we can show this to be a definite 'no-no,' then I guess it further supports the suggestion of waiting until the SB time has expired before making the claim.

[labman]

Re: DLC CCA request on purchased credit card deft

They don't make this stuff easy to find do they. This is from the FOS site (http://www.financial-ombudsman.org.u...i/redress.html )

where the business has “written off” or “sold on” the consumer’s debt

Some businesses make a commercial decision to “write off” or “sell on” a consumer’s debt when it is significantly in arrears. But different businesses use different terminology. For example, a business may say that it has “sold on” or “written off” a debt when it has actually transferred it from one part of its own business to another.
Where a business has genuinely “written off” a debt – meaning that it has agreed not to seek repayment in any circumstances – it might say that it is unfair for it to pay compensation to the consumer for the mis-sale of the PPI when the consumer did not pay the contractual payments on their debt. The business might say that the compensation should be offset against the amount of the debt it has written off. Where this happens, the consumer will usually say that because the debt does not exist any more they should receive all of the compensation.
In order to fairly compensate the consumer we will consider the position they would have been in if they had not taken out the PPI. We might conclude that the consumer would have fallen behind with the payments to their debt anyway and the debt would ultimately have been written off – but we will consider any evidence that the consumer has that this would not have been the case.
Where we decide that the debt would ultimately have been written off anyway we will usually tell the business to restructure the loan to remove the effect of PPI – that is, reduce the amount written off to what would have been written off if the consumer had taken out the loan without PPI. If there is any remaining compensation owed to the consumer because they have paid more than they would have done without PPI, we would usually say it is fair for the business to offset that compensation against any remaining amount it wrote off.
Where a business simply moved a consumer’s debt from one part of its business to another, rather than selling it on, we would usually apply the approach we take when a consumer is in arrears – set out above. We would also apply this approach if a business chose to buy back a debt it had previously sold on to a third party.
But if the debt was sold on to a third party and it cannot be bought back, or the business chooses not to buy it back, we might take a slightly different approach. That is because the consumer does not owe the business money – it owes money to the third party that bought the debt instead. When selling the debt the business made a commercial decision and accepted an agreeable price for the debt. In those circumstances, we would usually tell the business to calculate the compensation as normal at the point it sold on the debt – and to pay all parts of the compensation to the consumer. The business should also consider the possibility that the consumer might have incurred further losses since the debt was sold on as a result of PPI being included on their debt.

[Bill-K]

Re: DLC CCA request on purchased credit card deft

Well done, Labman. Good to see you can still rise to a challenge at this hour on a Saturday morning !!!

Well, that certainly seems to support your big but, sir, in that the FOS will support the 'buy-back' of a 'sold-on' debt. In fairness to the consumer, though, it is good to see it confirmed that the FOS acknowledges that the 'write-off' value of the debt must be taken into account in the calculations. Additionally, it is good to see that the FOS appear to recognise the idea of 'consequential losses...'

In order to fairly compensate the consumer we will consider the position they would have been in if they had not taken out the PPI. We might conclude that the consumer would have fallen behind with the payments to their debt anyway and the debt would ultimately have been written off – but we will consider any evidence that the consumer has that this would not have been the case.

The business should also consider the possibility that the consumer might have incurred further losses since the debt was sold on as a result of PPI being included on their debt.

[dogtired]

Re: DLC CCA request on purchased credit card deft

Sounds horribly familiar . Subscribe.

[Bill-K]

Re: DLC CCA request on purchased credit card deft

Sounds horribly familiar.

I DO apologise for the 'big but' jokes, DT. Please be assured that they were aimed solely at Labman !!!

[labman]

Re: DLC CCA request on purchased credit card deft

I DO apologise for the 'big but' jokes, DT. Please be assured that they were aimed solely at Labman !!!

...... who has taken great offence, and is now living in fear of being the butt of all jokes! :tung:

[Bill-K]

Re: DLC CCA request on purchased credit card deft

Devil's Avocado, of course, sir. A dish best served as a starter - and to be appreciated as such. Your further input is much respected - as the actress may have said !!!

Seriously - the FOS pronouncements are/should be based upon the FSA foundational guidelines. Can we get that FOS "Diktat" pinned down to the relevant FSA rules ?

The tape will, of course, self-destruct at the appropriate time - should you decline to accept this mission...!!!

[labman]

Re: DLC CCA request on purchased credit card deft

We can try! If at first we don't succeed ................

ask a gorilla to do it!


I'll give it a go, but REMIND ME! You know what my memory is like.

[Bill-K]

Re: DLC CCA request on purchased credit card deft

It's still a helluva lot better than mine - but I'll try and remind you - if I remember.

[MOTLEYMAN]

Re: DLC CCA request on purchased credit card deft

Thanks all for your invaluable advice and expertise especially Bill-k and Labman. So looks like my best option is to sit tight and wait for SB clock to tick down but if by chance they do find original agreement then I can dispute amount of debt owed because of mis-sold PPI as I was and still are self employed at the time of application for credit card. Correct? Many thanks once again.

[Bill-K]

Re: DLC CCA request on purchased credit card deft

I agree with you, MM. Yes - if they do manage to find the agreement and then continue to enforce the debt, then you can send in a PPI claim and dispute the amount of the debt on this basis.

[pt2537]

Re: DLC CCA request on purchased credit card deft

Thanks all for your invaluable advice and expertise especially Bill-k and Labman. So looks like my best option is to sit tight and wait for SB clock to tick down but if by chance they do find original agreement then I can dispute amount of debt owed because of mis-sold PPI as I was and still are self employed at the time of application for credit card. Correct? Many thanks once again.

Id keep the ppi up your sleeve.

If the agreement had ppi then to comply with s78(1) CCA they need the PPI terms and conditions, and most lenders struggle with that.

The Court of Appeal in Kotecha made it clear "ALL" the terms and conditions incorporated into the contract must be provided under s78(1), so if they cannot comply they cannot enforce imho