Debt purchaser and counterclaim

[Roger]

Most Likely the Claimant would ask for the defence to be struck out and for a summary judgment! The Claimant would be well aware of the proposed Defence, sic having the three letters! Judge simply sees a Debtor trying to dodge their Debt!

I hope that Topher has spoken to and listened to Gerry

[Topher]

It sounds to me you have taken advice from FMOTL. Accounts can be assigned, it happens all the time.

If you fight a futile fight with no legal prospects you could end up with a hefty costs order. That could lead to bankruptcy and if you dispose of assets to avoid it, that can bring a heap of trouble.

yes thats correct there can be serious consequences through some actions. However, this situation specifically is at worst heading for a CCJ

Accounts cannot be assigned, you cannot assign something so personal, a chose in action can be assigned, which is what a debt is. Its a legal chose in action that arises by virtue of a contract. Technically it cannot be assigned save by statute, which is what s25 of the 1873 judicature act achieved. S136 of the law of property act is a re-enactment of s25 of the judicature act. Neither section affects anything to do with the substantive law of assigments. What those sections set out to achieve was to give a party a right to sue in their own name where there was no need to adjoin the assignor. For a debt to be assigned it has to be converted to make it transferable. The debtors liability is supposed to remain with the other contracting party, unless specific formalities have been carried out to transfer the cause of action enabled by statute. In addition to that there needs to be an instrument that transfers the debt from the assignor to the assignee which carries title to it.

Nothing FMOTL over here… the books im using. The white book. The green book. The law of assignment marcus smith qc. Zuckerman on civil procedure. Law of personal property. To name a couple…

[Topher]

Most Likely the Claimant would ask for the defence to be struck out and for a summary judgment! The Claimant would be well aware of the proposed Defence, sic having the three letters! Judge simply sees a Debtor trying to dodge their Debt!

I hope that Topher has spoken to and listened to Gerry

Yee i did and everyone elses who’s commented on this thread. Its all been taken on board and much appreciated.

[Roger]

Yee i did and everyone elses who’s commented on this thread. Its all been taken on board and much appreciated.

AAD has been supportive of me and many many others! Supportive and not judgmental!
May this long continue!! I wish you good luck!

[Joanna Connolly]

yes thats correct there can be serious consequences through some actions. However, this situation specifically is at worst heading for a CCJ

Accounts cannot be assigned, you cannot assign something so personal, a chose in action can be assigned, which is what a debt is. Its a legal chose in action that arises by virtue of a contract. Technically it cannot be assigned save by statute, which is what s25 of the 1873 judicature act achieved. S136 of the law of property act is a re-enactment of s25 of the judicature act. Neither section affects anything to do with the substantive law of assignments. What those sections set out to achieve was to give a party a right to sue in their own name where there was no need to adjoin the assignor. For a debt to be assigned it has to be converted to make it transferable. The debtors liability is supposed to remain with the other contracting party, unless specific formalities have been carried out to transfer the cause of action enabled by statute. In addition to that there needs to be an instrument that transfers the debt from the assignor to the assignee which carries title to it.

Nothing FMOTL over here… the books im using. The white book. The green book. The law of assignment marcus smith qc. Zuckerman on civil procedure. Law of personal property. To name a couple…

Unfortunately the argument you are making is not accepted in the English Courts. In the English Courts accounts can be assigned both equitably and legally.

For a Consumer credit agreement the assignment of the account from the original creditor to the debt purchaser must be a legal assignment , compliant with S.136 of the Law of Property Act 1925, so the assignee can stand in the shoes of the creditor (as defined by s.189 Consumer Credit Act 1974). and if authorised by the Financial Conduct Authority, is entitled to lawfully issue proceedings in the County Court.

The instrument that transfers the Account/debt from the assignor to the assignee for a legal assignment is a Deed of Assignment or similarly named signed by the parties.

[Topher]

Unfortunately the argument you are making is not accepted in the English Courts. In the English Courts accounts can be assigned both equitably and legally.

For a Consumer credit agreement the assignment of the account from the original creditor to the debt purchaser must be a legal assignment , compliant with S.136 of the Law of Property Act 1925, so the assignee can stand in the shoes of the creditor (as defined by s.189 Consumer Credit Act 1974). and if authorised by the Financial Conduct Authority, is entitled to lawfully issue proceedings in the County Court.

The instrument that transfers the Account/debt from the assignor to the assignee for a legal assignment is a Deed of Assignment or similarly named signed by the parties.

Yea i can see my posts are a little inadequate in comparison to a full argument. In summary If the assignor has not complied fully with with s136 theres a failed assignment. If the amount and or ownership is disputed, which it is, then documents of title aka deed of assignment as its commonly known would benefit to being produced to prove otherwise. Theres also plenty on unenforcability surrounding the agreement

im trying to catch up on the “lack of authorisation” what it appears to me is the cabot credit managment group is the parent company authorised by the fca, its using holding companies such as cabot financial uk to make claims on its behalf. This in my mind is akin to an equitable assignment where the parent company ought to bring the claim. Is it the case that despite not being licensed, by cabot credit managment assigning the debt to a holding company its the equivalent of an equitable assignment.

If in a banking structure i took out a loan lets say the bank opens a holding company, or an SPV and transfers the debt/recievables to them, that holding company or SPV does not have the right to claim in its own name, only the parent company/bank can make a claim as legal owner. I know what im suggesting here isnt alligned with the procedure your suggesting with FCA authorisation, but its more curiosity as who legally owns the debt because if its the parent company, in my opinion the holding company would only be an equitable assignee and s136 would be required to transfer the right to sue from the parent company to the holding company….would be fascinated to hear others thoughts on this theory…

[Topher]

In my case here for example newday limited were the legal owners of the debt, aqua a child company held the account. If they were to make a claim, newday would have to bring the claim, aqua do not hold legal title. Likewise to leggally assignt the debt under s136 newday hast to write/sign the notice of assignment as aqua do not have title to do this. Thus if a debt is assigned to cabot credit managment group, its child company cabot financial uk cannot then bring a claim in its own name it would require another notice of assignment to give it the right to sue…

[Roger]

Oh dear!
Today is 11th January and you started with stating ".. I've had a claim form from the county court business centre regarding this debt. .." that was 6th January so I have no idea the date of the Claim!

When is a Diary entry NOT a Diary entry when it hides from AAD the details such as Original Creditor!

The Law is a fascinating subject BUT this isn't the place for speculative opinions and doubtful legalise!
You are running down your time and frankly boxing yourself and you're opinions in

Look its your DEBT but I think you are heading for a CCJ possible by default which doesn't have a TIME LIMIT.

Have you looked at and searched the Diaries for similar Cards and Cases?

Topher I hope you didn't waste a free phone call on this rather than dealing with a very real and pending CCJ?
AAD wishes you well but I can't see that you are focused on this Debt and no two Cases are the same!

[Topher]

Oh dear!
Today is 11th January and you started with stating ".. I've had a claim form from the county court business centre regarding this debt. .." that was 6th January so I have no idea the date of the Claim!

When is a Diary entry NOT a Diary entry when it hides from AAD the details such as Original Creditor!

The Law is a fascinating subject BUT this isn't the place for speculative opinions and doubtful legalise!
You are running down your time and frankly boxing yourself and you're opinions in

Look its your DEBT but I think you are heading for a CCJ possible by default which doesn't have a TIME LIMIT.

Have you looked at and searched the Diaries for similar Cards and Cases?

Topher I hope you didn't waste a free phone call on this rather than dealing with a very real and pending CCJ?
AAD wishes you well but I can't see that you are focused on this Debt and no two Cases are the same!

all in good time, ive served acknowledgment of service, requested disclosure which if they stick to their time frames will be complied with next week. The defence is being prepared, ive got just under 20 days to serve it. It will be served the week after next.

Leave no stone unturned, the equitable assignment theory is a possibility until its disproved. Reading up on the issues surrounding the FCA authorisation. Kind of goes hand in hand with what i said above. Cabot financial uk limited is an SPV. Im not sure why the appeal in the MFS Portfolio Ltd v Phelan case went the way it did. It seems that the whole point of s19 fsma 2000 is to protect consumers, the exemption enables exemption for SPV’s however the protection for consumers was still afforded in FCA rules where if they were exempt they were not allowed to carry out debt collection activities. I do not believe for one moment that the legislators created all this protection for consumers to only allow it to be bypassed providing a servicing agreement exists. According to cabots website its the operational company that has authorisation to make debt claims, i.e cabot financial europe. Cabot financial uk is an spv aka purchasing company that “owns the debt” but doesnt have fca authorisation is exempt and has the right to claim. From what i understand so far, this servicing agreement invalidates the FCA rules prohibiting exempt companies from carrying out certain activities, so what would be the point in the fca making those rules..??

[Roger]

If you look at the Diary entries you can see that FCA approved Agents can collect on the part of Principals/Owners! Which it seems you have just discovered!

These DCA's tend to be global groups bulk buying debts around the world. Same applies to the various lenders/Banks Original Creditors.
Multi million business with SPECIALIST LEGAL SUPPORT on hand! This is what you are really up against!

Listen Knowledge here can be Our undoing!
Because you won't find the current nous and tactics in the textbooks!

Yours is a small claim and tactics and timing are very important!

Something which AAD has fairly recently been discovering!
But the game has changed such that what we did or were advised to do just what six months ago has changed!!
What I did 6 years ago and was advised to do I probable wouldn't do NOW

The DCA's are several steps ahead of YOU here! Seen it; Done it and dealt with it before!

Its your personal choice off course and AAD respects and doesn't judge your choices.

Knowing what I now know! I listen to good advise and use the best professionals I know!
A small price to pay for peace of mind!

[Topher]

This is where i think their “right to sue” using a service agreement falls flat on its face.

d)

does not undertake the regulated activities of debt counselling, debt adjusting or debt collecting in relation to a regulated credit agreement other than during an “exempt period”. An “exempt period” is the period of 30 daysbeginning on the day after the day on which a servicing arrangement came to an end. Where, for example, a servicing agreement comes to an end suddenly or unexpectedly, P has a grace period of 30 days to find a new servicer and enter into a new servicing arrangement, and may service its own loans in that period without being authorised.

I dont have proof yet but common sense would say they are debt collecting outside of exempt periods, which invalidates their ability to rely on a service agreement.

secondly is this

1. (3)
   
   In addition, P must have arranged for the servicer to comply with:
   1. (a)
      
      any provision of, or made under, the Act applicable to authorised persons that relates to the exercise of the right of the lender under a regulated credit agreement to vary terms and conditions of the agreement; and
   2. (b)
      
      the requirements of, or made under, section 82 of the CCA (variation of agreements).
   
   Where P varies the agreement itself, P must comply with those provisions and requirements.

They have to make sure the service user complies with rules to vary the agreement. This is impossible in law if the servicer was not a party to the agreement. They would have to rectify the terminated agreement, adjoin the original party to it and have a service agreement with the existing party for it to be effectual or it would require a novation. Privity of contract! Contracts rights of third parties act!

As i started this thread i stated that the alleged assignee is claiming in a notification that there is an agreement between myself and it and that they can vary the terms of the agreement. Now i know why they have put that in the notice. If one does not nul and void it immediately then it would create a tacit agreement and look as though the debtor is in agreement.

What it appears to me is that the ability for an SPV to rely on the service agreement with the servicer relies on contracts between the servicer and borrowers. This has nothing to do with assignments of debts to the SPV where the contract does not involve the servicer. Its so complex financial transactions being perfomed through a group of related companies can manage their own affairs better.

[Topher]

I really need some help. Im probably being thick but i cant identify which paragraph is paragraph 55 in the FSMA exemption order, is anyone able to point it out kindly ?

[Topher]

Standing on my original allegations in this thread that there is a misrepresentation in a notice sent by the assignee claiming or at the least implying there is an agreement between myself and it which it can vary the terms of. This is a deliberate misrepresentation to enable a cause of action for an exempt SPV to make a claim on the premises of a service agreement between the servicer and SPV. It needs to try and establish that theres an agreement between the servicer and borrower that the servicer can vary the terms of to enable the FCA clauses and paragraph 55 of the fsma exemption order to be effectual enabling the SPV to be able to carry out regulated activities undrr an exemption. There is not in this case.

[Roger]

Well its news to me that DCA's are Lenders!! Seems to me that you are implying that they are Lenders!! Or confusing status!
They bulk buy CLOSED Debts.
If the Debt hasn't been closed by the Original Creditor the DCA's Case collapses.
Very simply put DO FSC Authorised DCA's Lend? Do they Create DEBT? Do they answer to the BoE for Debts they have brought? Well we know that Original Lenders write these Bad Debts off for Tax purposes so the Money nolonger exists in the Economy. But the account debt remains and some of the CCA1974 Rights and Duties remain such as Statements etc.. They can fail in claims if they do not comply with these regulatory duties.
The courts and the FSC clearer recognise the difference between a closed Debt and the CCA duties applicable to Closed Debts and a Lender.
The DCA's are subject to Regulatory conduct and can be reported if they fail to comply!

Sorry but it seems to me that you are scratching around and seriously risk significant Costs against you!!
The DCA's Lawyers and indeed Solicitors etc.. have Professional Indemities to fall back on.

We do not have Indemities or access to years of Case files BUT the DCA's do!

I wish you well BUT it seems to me you are struggling to put together a water tight Case. Hence coming here! You seriously do risk a Default Judgment and Costs. These Costs might be above those consistent with normal small claims.

I think you should concentrate on the claim in front of you! If you Counter Claim you will require EVIDENCE and without this your claim will fail.

Better to take issue up with your MP! But first deal with the claim that is in front of you!

Your Diary entry is to sparse frankly for me personally to make any Suggestions.
Perhaps a better Diary with history would help both AAD and yourself otherwise its pure legalise speculation isn't it!

[Topher]

Yep i agree, a counterclaim is unlikly at this stage however, with the information ive just cited i believe i can prove the “owner” does not have a right to bring a claim. Going by that unenforcability, potential defects in the assignment i think i have enough to fight my corner.