Debt Collection Agencies/Refunds

[di30]

Re: Debt Collection Agencies/Refunds

(Friend) informed me he yesterday made the FOS aware that his account is assigned by absolute with a DCA, and no longer with the collections dept of Lloyds.
Do you think he done the right thing folks?

I always have that feeling if the complaint is being dealt with by the FOS, and despite the debt full assigned (absolute) to a DCA, that the FOS will suggest the refund to be sent to them, yet if it was dealt with directly and resolved with the business in itself it may be a different matter.

I was informed OTR yesterday that a business directly refunded another customer whilst the debt was fully assigned to the DCA, but the feeling I have if dealt with by the FOS, they will still suggest the DCA?

My friend says he does not mind the refund being used towards the debt, but now feels that will be entirely up to him to sort this out directly with the DCA and not the FOS etc....

[jax50]

Re: Debt Collection Agencies/Refunds

that might work with PPI, but not sure when charges which haven't actually been paid are being refunded...it's just part of the 'sum owing'..but I am still trying... though if I can pursuade them the refund offsets the 'amount due' as well as the outstanding balance, from the old DN, i might be onto something..

Re: Debt Collection Agencies/Refunds

This may be useful. It was used in a successful case to combat the right off set off when Barclaycard were trying to do so.

You say, "With regards to the debt set-off against your settlement, I am afraid that this is what we have to do in all cases".

I disagree that you HAVE to do this in all cases. You may have chosen to do this but you have no basis in law to do so.

You no longer own the alleged debt and have no right to withhold monies in respect of it. If DCA wish to pursue me for any amount they allege I owe them, that is their prerogative.

The authority for my views is the case of Edlington Properties v. Fenner & Co. Ltd [2005] EWHC 2158 (QB) which affirms this position that the assignor has no right of set-off to a third party (assignee) for a damages claim brought against it post-assignment, as any equitable set-off in this regard is personal in nature and the debt sold is not transferred subject to it.

[dogtired]

Re: Debt Collection Agencies/Refunds

It does look like that what we need is some form of consistency so that we know when pursuing this that we will either get the full amount back or that we will not.
It should be clearer as I know two different cards with same banking group but not treated the same no wonder we get confused!

[Bill-K]

Re: Debt Collection Agencies/Refunds

It is clearly important to establish the existence of a debt before you pay it.

I'm beginning to see the sense in CurlyBen's advice. Don't take the first step for them. Responding - in any way - to the first letter is a confirmation that they have a fish on the line, so they will then start to try 'reeling us in.' Ignoring it makes sense to me now. Saving the 'Prove It' and 'Who Are You' letters until later is perhaps better.

...the law relating to assignments changed recently(ish), so LoPA may not apply to very recent debts. I don't want to muddy waters by going into that here unless you want me to.

I agree - it's best to be clear on what we have here so far. More recent (European ?) legislation can be tackled as 'post-graduate' issues, methinks.

Re: Debt Collection Agencies/Refunds

It is for this very reason that Curlyben suggests (and I agree 100%) ignoring the first letter from a DCA completely. IF (you might be surprised how big an 'if' this is with some DCA's) they get in touch again, send a Prove It letter.

It is clearly important to establish the existence of a debt before you pay it.

Bill, the putting me on the spot re LoPA 1925 is not a problem as such - yes, it covers all debts we're discussing here. However, the law relating to assignments changed recently(ish), so LoPA may not apply to very recent debts. I don't want to muddy waters by going into that here unless you want me to.

[jax50]

Re: Debt Collection Agencies/Refunds

You might wonder if some OC's or DCA's would send a NoA anyway, just to make the debtor think it is a legal one..if we assumed that all equitable assigments are not notified and all legal assignments are, then you could see how we could be hoodwinked.

I agree with Bill-K in that all assigments should be notified, and the type of assignment should be made totally clear. Whatsmore, all assigment notices should be recorded delivery and not deemed served unless signed for at the delivery address. This would clarify for the debtor who has rights to pursue the debt, and what those rights are. This seems to me to be an obvious thing that should have been implemented.

[Bill-K]

Re: Debt Collection Agencies/Refunds

Thanks for the link. I didn't realise that Equitable Assignment was effectively the 'default' state, and didn't require a Deed to be drawn up. It's obvious, really, innit ? But it wasn't to me !!! No need for a Deed, as the assignee is simply acting as an agent for the assignor. So - if there IS a Deed of Assignment, then we know (99 % ?) that the assignment is therefore absolute.

Can we take it that the LoPA 1925 can be applied to all debts, and not just mortgages ? Soz - putting you on the spot there, mate !!!

What still annoys me is something Labman pointed out to me a while back in relation to my earlier 'Prove It' letters. That is that the OC does NOT have an obligation to inform the borrower that the debt has been assigned. This, to me, is unsafe because it means that any Tom, Dick or Harry can tell us they have been assigned our debt, and con us out of our money before disappearing under a stone. Why should we believe them, when the OC has told us nothing ? I'm sure I'm not alone in having had more than one DCA chasing me for the same debt at what appears to be the same time. There are many of us who would be utterly confused and intimidated by this. I believe a letter from the OC should be mandatory, when we are being told to be constantly on our guard against fraud.

Re: Debt Collection Agencies/Refunds

Is a Letter of Assignment the same as a NoA ? And what actually validates it ? Must it state the type of assignment ?

Sorry - questions, questions....it's the type of assignment that we need to find out.

An Equitable Assignment does not need to be put in writing, as it is only asking a third party to collect the equity in the debt (the money owing) - henceit being Equitable. An Absolute Assignment does have to be in writing in accordance with LoPA 1925.

Have a read of this:

http://news.rkllp.co.uk/?p=391

[di30]

Re: Debt Collection Agencies/Refunds

Cheers Bill,

That's how I made a start with mine since reading Guy Ankers information on this, but did not know that this was something that could be pursued until then.
If mine end up successful, as my account is now clear with Lloyds, then the refund should come back to me.

So it will be interesting to know with my friend of what the outcome, if successful via FOS on this product, whilst is his with DCA.

[Bill-K]

Re: Debt Collection Agencies/Refunds

All you need is a valid NoA.

Is a Letter of Assignment the same as a NoA ? And what actually validates it ? Must it state the type of assignment ?

Sorry - questions, questions....it's the type of assignment that we need to find out.

Guy Anker wrote this about Packaged Accounts in MSE:

http://www.moneysavingexpert.com/new...t-compensation

Re: Debt Collection Agencies/Refunds

All you need is a valid NoA. The Deed will only ever be disclosed through court proceedings. As said above, they can't be revealed in a SAR due to breach of DPA as yours will be just one out of a batch of debts listed.

[jax50]

Re: Debt Collection Agencies/Refunds

What they sent was an incomplete copy, then - but their explanation makes sense, TBH. Of course, I forget that these debts are often sold as a whole 'package' of debts, and so there may be a whole list of them covered by the one Deed of Assignment. To show the list of all the other debts would be a breach of the DPA - BUT - I don't see why they couldn't have shown you the terms of the Deed. This explains why we rarely - if ever - get to see a Deed of Assignment.

Sorry Jax - DSAR = Data Subject Access Request.

The truth is they either can't be bothered or they want to hide something. If it came to Court you can guarantee 100% the deed would be found, filtered and presented to prove absolute ownership..

[jax50]

Re: Debt Collection Agencies/Refunds

labman...I'd overlooked that option ! lol

[Bill-K]

Re: Debt Collection Agencies/Refunds

Replying to Di's post - I think Jax's experience is why we never get to see a copy of a Deed of Assignment in our DSAR data, so I'm not sure that you'll get one from Cabot - with or without a DSAR. I'm not sure that we really need to see the terms, anyway - we just want written confirmation of what type of assignment it is.

Pedantics. Some peeps use the abbrevo SAR, and others use DSAR - it's the same thing. I prefer DSAR myself because under the DPA we are each individually known as "Data Subjects," not just "Subjects." When a Data Subject "Requests Access" to their data, then we have a "DSAR."