Original Lender

[bettyb]

Hi there, In relation to a credit card default that has been assigned to a Debt Buyer, is there ever a situation where the original lender can or does recall the debt ? Not including the lack of a hard copy credit agreement. Many thanks !

[R0b]

Highy unlikely but possible provided there is a provision that allows them in the assignment agreement between the lender and the debt purchaser.You have to remember lenders are in the business of lending and making money, not chasing bad debt which is why they sell the debt on.

[bettyb]

Highy unlikely but possible provided there is a provision that allows them in the assignment agreement between the lender and the debt purchaser.You have to remember lenders are in the business of lending and making money, not chasing bad debt which is why they sell the debt on.

Ok many thanks R0b. Makes sense.

[Celestine]

It doesn't ultimately make a lot of difference who owns the account and I'm not sure I can recall a single case of a purchased debt being returned to an original creditor.
If the debt purchaser has been unable to supply a 'hard copy credit agreement' that will be because the original creditor has been unable to dig it out, so it's unenforceable either way. The credit agreements do not get supplied with the assignment, they only become relevant and need to be accessed by the original creditor if you send a CCA request. What's your situation?

[bettyb]

Hi Celestine, thanks for your reply. Unfortunately I am quite far along. A debt purchaser going full throttle with a default judgment that I am in the process of getting set aside.
They have submitted to the courts all my credit card statements, default notice, assignment notice, an agreement, and a promise of a sealed Deed if the judge wants to see it.
I never received the compliant notices at the time they say they were originally sent, but a lawyer who saw their submission said the fact that they have such paperwork now will be good enough for a court to find in their favour. (I was asking the debt collectors for proof of claim for months while they ignored me and continued to add fees and interest and its blown out to well over double the default - this is where I went very, very wrong)

The "credit agreement" is a brochure. The statements also show a sneaky interest rate increase that I was never notified about. And the original lender responded to my Request for Information before all this kicked off and in there it appears to show that my debt was perhaps written off as well !
At this stage these three issues are my defence, as well as pushing to see the Deed.

I was advised by the same lawyer that IF I am successful it could simply just then be passed back to the original lender to resume normal collections so he strongly advised that I make an offer to the debt buyers.

So that got me thinking about forcing the original lender to take it back now rather than go through a stressful or risky trial and incur more fees and charges, since they have appeared to sell an unenforceable debt.

[Celestine]

Where are you with the set aside application? Have you submitted it and are awaiting an outcome?
What does the brochure show? What year was the account opened? (makes a big difference)
I'm afraid I would disregard any idea of returning this debt to the original creditor. If you have genuine concerns about debts not being written off when they should have been, you could still make a complaint to them.
How come you were unaware of the judgment also?

[bettyb]

Where are you with the set aside application? Have you submitted it and are awaiting an outcome?
What does the brochure show? What year was the account opened? (makes a big difference)
I'm afraid I would disregard any idea of returning this debt to the original creditor. If you have genuine concerns about debts not being written off when they should have been, you could still make a complaint to them.
How come you were unaware of the judgment also?

Many thanks for your reply Celestine. Set aside has been submitted, and the date is looming, It was supposed to be in the last week of March but it was changed by the court I am guessing due to the virus situation.
The agreement brochure is dated 2016 but the account was opened in 2014.
There is paperwork to suggest that the debt was written off but no surprise that the lender will not confirm or deny.
The judgment was a default judgment, I just got a letter from the courts that it happened, and when I rang the clerk she gave a chuckle and said "oh they got this without you knowing". The debt buyers have gone through the courts from day dot.

[Celestine]

Two questions spring to mind:
1. What exactly do you mean by 'There is paperwork to suggest that the debt was written off' and why would the debt have been written off, this is exceptionally rare with original lenders.
2. How did they get judgment without you knowing? Wrong address, had you moved? Did you receive any pre-action letters at all?

[bettyb]

thanks so much Celestine,i missed your reply.
Ok so, in my request for information under GDPR from the original lender they sent me a stack of my statements, default notices, and account notes where it suggests they sold an unenforceable/wrriten off debt and rectified it with the debt buyer, (who continued on anyway).
I was never told why they got default judgment, have not changed address or anything and I do open all my mail. When I further pressed the the court clerk, she said sorry you'll have to get a lawyer and deal with it that way!

[Celestine]

and account notes where it suggests they sold an unenforceable/wrriten off debt and rectified it with the debt buyer, (who continued on anyway).

The account could only be unenforceable if you had previously sent a CCA request to the original lender, who were unable to comply and wrote to you to confirm they could not enforce debt - did this happen? If not, the term 'written off' is used when a debt has been pursued/demanded without success and the original lender stops trying to chase it and instead sells it in a package of account debts to a debt purchase company.

I was never told why they got default judgment, have not changed address or anything and I do open all my mail. When I further pressed the the court clerk, she said sorry you'll have to get a lawyer and deal with it that way!

This is strange and concerning. This would mean that all letters from court and opponent did not reach you? It may cause problems successfully seeking set aside. Also you must have a defendable case to get a set aside. 2014 is fairly recent so do try to use this lockdown period while set aside hearings etc will not be happening to try and find out a bit more.

[bettyb]

OK sounds good, many thanks for the reply Celestine, appreciate it. I did send a CCA to the original lender who ignored me or took their time, it took 3 letters before they sent me some paperwork. They never wrote to me about anything except the cover letter with the sent statements, defaults, etc, in one envelope with that cover letter simply saying "as requested... ", along with the assignment notice that says they sold it on, as you describe. However, the "write-off" I mention concerns the account notes that state they sent a cheque back to the DC as for my account. So my set aside is based on this!

[bettyb]

Celestine Greetings again! Hope you are well, and thanks for your help up to now. I am set to go for my set aside hearing next week, I just have a question that you may be able to help me with.... One of my reasons in applying for the set aside is that the account has been settled/written off, and I have evidence.
The second issue that I've come across though in this lockdown period is that I was told by an acquaintance lawyer who only briefly saw the Claimants evidence/statements/default notices/conditions of use, they said that they were charging me at an interest rate that is more than what the original lender started to. I sought clarification from the original lender, and they admitted they increased my rate, but denied that they had to tell me. My understanding is that this is incorrect, that I must be notified, and that now the debt collector is charging me at the higher rate and it is snowballing.

My question is.... how do I pivot from 'the account is closed' to 'the figures are wrong and I have been overcharged' ? If the closed account argument fails, for whatever reason.

[Celestine]

The interest rate that is applied to a court claimed debt is 8% County Courts Interest, this is totally separate from any interest added to the original account.
When the account was sold on, the interest should have been frozen. Debt purchase companies do not continue to apply interest from the original contract, so I confess to being somewhat confused by your comments on interest.
I am also still unsure about your belief the account was written off. All accounts that are sold each year are written off. Please give us a really detailed explanation of the sequence of events that support your belief in this for me to offer any useful information.
Whatever information is supplied in your set aside application is what will be permitted in court, you cannot introduce totally new arguments but you can sometimes 'slide' them in subtly during the hearing. (Is that happening by phone?)
What debt purchase company are we dealing with here?