Jones v Link Financial Limited

[Paul.]

http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

The Assignee of a credit agreement becomes the creditor for statutory obligations

OOoops Link just shot down Cabots favorite argument that they arent the creditors when they get assigned debts

[PlanB]

Re: Jones v Link Financial Limited

I'm struggling to understand this case Jones had already got a CCJ and was attempting to get it overturned by the High Court on the basis that the Claimant (as assignee) had no legal right to make the claim in the first place It would be a very brave Judge to agree with that contention

Even though she lost the appeal it's a win for the consumer who can no longer be fobbed off by debt purchasers that they don't have to comply with a s.78 request (have I got that right?).

[Paul.]

Re: Jones v Link Financial Limited

Why she appealed is not really relevant, its the ruling that came as a result that is very very very relevant.

The net is wider than just s78, it covers all statutory duties under the Act

[SaltnVinegar]

Re: Jones v Link Financial Limited

Just for my understanding how does this affect the types of assignment?

I know that there are two types of assignment - equitable and absolute.

From the judgement I read this that Link had been given absolute assignment. Is that correct?

If so how would this affect equitable assignments? It at all?

Thanks!
SnV

[Paul.]

Re: Jones v Link Financial Limited

Just for my understanding how does this affect the types of assignment?

I know that there are two types of assignment - equitable and absolute.

From the judgement I read this that Link had been given absolute assignment. Is that correct?

If so how would this affect equitable assignments? It at all?

Thanks!
SnV

If its equitable then the restrictions on enforcement would bind the assignee and the creditor

If its legal assignment then the credit is the assignee and therefore the act binds him

[SaltnVinegar]

Re: Jones v Link Financial Limited

If its equitable then the restrictions on enforcement would bind the assignee and the creditor

If its legal assignment then the credit is the assignee and therefore the act binds him

Thanks Paul

So basically this ruling means a DCA cannot argue that they have been assigned a debt under LoP 1925 and have the rights but NOT the duties.

Cheers
SnV

[gravytrain]

Re: Jones v Link Financial Limited

I have been studying this in regard to a friend of mine who is having problems with Cabot, and also somePPI issues.

Really in order to try and gather my thoughts on the subject. I will put it on here, please feel free to correct any mistakes or miss understanding of the concepts concerned, I am after all just an amateur trying to understand some quite complex ideas.

My simplistic understanding is, simply put, rights under a contract are things you can compel the other party to do; duties are what you have to do.
So on a loan agreement for instance, once the loan has been issued the creditor has the right to demand payment and the debtor has the duty to repay. Looking from the other direction the debtor has the right to copy docs and the creditor has the duty to supply them under the statute.

The Law of property act only assigns the rights under a contract, it does not matter if it is equitable or absolute only the rights can be assigned.
It is a common law principle that duties under a contract cannot be assigned (like all principles there are exceptions).

If this were not the case you or I could sell our debts to someone else, I remember there was a CMC a few years ago that tried to do just that. They would offer to buy your debt for a fee of £100 and then they said the creditor would no longer chase you, but have instead to chase them.
Common law as stated would not permit this, and the FSA quickly shut them down.

Regarding absolute assignment under the lop 1925.

In Jones Vs. Link it was contended that link could not enforce the agreement because they were not the creditor as only the creditor can enforce a regulated agreement (sec.8 CCA parties to an agreement).

Her argument was that link could only become the creditor if they were assigned both the rights and duties under the agreement as per section 189 of the cca (definitions).
Since duties are not assigned under the LOPA (or for that matter in common law) Link could not be the creditor.

The judge agreed that this was sound logic, and commented that if true it would be a real problem for consumer credit debt collection, as assigned debts would of necessity fall into an unenforceable “black hole”.

However the problem as far as Ms Jones was concerned, was that the act, when referring to the assignment of duties in section 189, was not referring to the duties under the contract, but duties under statute (cca1974), (duty to issue a DN, to send copy agreements etc).
These of course can be transferred if the act says they can.

So the assignee on an assignment can be creditor and can enforce.

From our point of view this destroys the claim that DCA’s in receipt of an absolutely assigned account do not have to abide by the requirements of the act regarding copies DN’s etc, they certainly do.

I think it also raises another interesting point regarding PPI repayment. What happens if an account is assigned to a DCA and then a PPI refund is made on the account?
In my opinion the rights to reclaim the repayment of the loan have passed, and the new creditor debtor relationship is the DCA and the debtor, the OC is no longer the creditor. The DCA has no right to claim further money from the OC.

Also I believe that even though the duties under the statute have passed to the DCA the duties under the contract remain with the OC, I think that he would have to repay the debtor who could then decide for himself if he wanted to repay the loan with the money.

[BBoo]

Re: Jones v Link Financial Limited

Put another way, if the creditor did pay the refunded ppi money towards a debt which had been Assigned in Absolute, on what legislation would they rely?

Would it not be regarded as misappropriation? If so, what avenues are available to the claimant to get their money back - I do hope there's something other than the FOS!

[gravytrain]

Re: Jones v Link Financial Limited

Indeed,i think the issue is a contractual one.

The contract was originality made between the OC and the debtor, the assignment only assigns the rights under contract and duties under statute to the DCA.

There is then no contractual rights between the dca and the OC in regard of monies owed by the OC to the debtor.(post assignment)

Any contractual duties owed by the OC remain in favor of the debtor in my opinion.

Putting it another way the debtor has the right to demand the duties under the statute from the DCA( these were transferred)copies etc, he also has the rights to the contractual duties owed by the OC under the original contract as these were not transferred.

I think you would probably have to make the argument, as i have a feeling that the creditor would be inclined to just pass the re-payment on unless challenged.