Credit Card Company's Right of Set Off when Debt Has Been Sold

[Titan121]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

Yes..... I agree with you Oscar..... but it's a tricky one because of the acknowledgement issue (in my opinion). Titan can pursue it but I'm not sure it would be in his best interests to do so.

How much are we talking about?

Ok. Excuse any typos but am doing this from handheld device

So. I hear what you are both saying. First a CCA is not an acknowledgement. I have asked them to show me proof they own the debt. A letter telling me as such is not enough. They have to prove it. Isn't that the point of the CCA? If they had produced evidence then I would have dealt or negotiated with them accordingly. And, given that they had already sent me "make me an offer" letters, I knew how to handle them

I am not disputing I owe a debt. What I am disputing is the amount. If as I have done, reclaimed all the unfair charges on the account plus the interest I have been charged, the amount of the "debt" that the DCAS " think I owe is incorrect and BC paying this to the assignee is wrong! The actual debt owed is more than less than half of the amount demanded! Also, what gives BC the right to prioritise my debts over others which is effectively what they have done.

If magically there is some kind of clause in the assignment that binds BC to right of action they have taken,, then why do we the consumers not know about it? This is a post-assignment damages claim and the assignee is NOT party to it or are they? This is what I am trying to establish.

If the Assignee DCAS wish to pursue me, that is their perogative, but at the end of the day the Assignor does not have a right of passage to circumvent that! They are two different entities.

Do you see where I'm coming from?

[PriorityOne]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

Ok. Excuse any typos but am doing this from handheld device

So. I hear what you are both saying. First a CCA is not an acknowledgement. I have asked them to show me proof they own the debt. A letter telling me as such is not enough. They have to prove it. Isn't that the point of the CCA? If they had produced evidence then I would have dealt or negotiated with them accordingly. And, given that they had already sent me "make me an offer" letters, I knew how to handle them

I am not disputing I owe a debt. What I am disputing is the amount. If as I have done, reclaimed all the unfair charges on the account plus the interest I have been charged, the amount of the "debt" that the DCAS " think I owe is incorrect and BC paying this to the assignee is wrong! The actual debt owed is more than less than half of the amount demanded! Also, what gives BC the right to prioritise my debts over others which is effectively what they have done.

If magically there is some kind of clause in the assignment that binds BC to right of action they have taken,, then why do we the consumers not know about it? This is a post-assignment damages claim and the assignee is NOT party to it or are they? This is what I am trying to establish.

If the Assignee DCAS wish to pursue me, that is their perogative, but at the end of the day the Assignor does not have a right of passage to circumvent that! They are two different entities.

Do you see where I'm coming from?

Ok... yes, a CCA request is asking for proof of ownership but it's about getting proof that they do; not geting proof that they don't have enforceable paperwork..... and you don't actually want proof that they do own an account anyway because they can then enforce it, so it's a very contradictory procedure. DCAs are extremely reluctant to give anyone proof that they don't have enforceable paperwork and when you've dealt with as many as we have on here, you learn how to interpret their responses (if any).... so learn to leave it alone when you get nothing back!

As Lowells (or any other DCA that may crawl along in the future) have so far not provided that proof, what you should be doing is ignoring all "offers" until/unless they do.... because these "offers" are not in your best interests; all they are doing is attempting to get some kind of payment out of you to make up for the fact that they've bought themselves a duff account. So in a nutshell, it's in their best interests to get something out of the mess they've found themselves in and pestering consumers who are not legally savvy is sometimes a good way of doing it (as far as they are concerned).

In re-claiming charges on a debt balance, all you have done is to bring the debt balance down.... but it's not your money because it never was.... and, if BC have sold this account with unlawful charges as part of that debt balance, then the whole assignment would be unlawful anyway because the balance was incorrect on assignment (but that's a whole different argument that you can have later on, should it prove to be necessary.... which it probably won't).

I do see where you are coming in theory but in reality, the charges are not your money, the debt is not your money.... so I'm a bit unclear what you're trying to get back for yourself when none of it was yours in the first place.

[alangee]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

Titan

I have found that in every claim I have made for charges after the debt has been assigned has been paid directly to me.

Sainsburys and Barclays tried to offset it, but after I pointed out that they no longer owned the debt, they apologised and sent me a cheque. Now I should also add that in each of theses cases I had made a claim through the court, so whether that made a difference or not I cannot be sure.

Alan

[SXGuy]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

There seems to be a few points here as others have mentioned also.

Firstly, whether the agreement is enforecable or not.

And whether the amount assigned is correct or not.

Personally, you cant argue both points, they contradict each other.

I would think that it would be impossible to argue the debt is unenforceable yet also argue the amount is wrong.

Either you admit to the debt or not, in which case, pick one argument and stick with it.

If you go down the prove the debt route, you cant really argue about unfair charges, as your not admiting to it, how would you know what was right or wrong?

If you are going down the unfair charges route, then the right to offset is not an argument, they have every right to offset the balance, all you can really do, is hope they repay some of that to you through finding that there was unfair charges.

So as i say, either you want them to prove the debt is enforceable, or you want to be repaid the unfair charges.

But what you cant do, is play both games.

[alangee]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

SX

I do not agree.

You can have an UE agreement, and still claim back charges. If the account is still owned by the OC, then yes, they can offset, however, if it is sold to a DCA, then there is no reason that you cannot claim back those charges from the OC. I have done it several times. You can then use that refund to negotiate a settlement with the new owner - if you want to.

Where it may matter is that you would restart the clock on statute barred. Titan would have to make that decision.

Alan

[PriorityOne]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

SX

I do not agree.

You can have an UE agreement, and still claim back charges. If the account is still owned by the OC, then yes, they can offset, however, if it is sold to a DCA, then there is no reason that you cannot claim back those charges from the OC. I have done it several times. You can then use that refund to negotiate a settlement with the new owner - if you want to.

Where it may matter is that you would restart the clock on statute barred. Titan would have to make that decision.

Alan

Alan, please can you say whether the unlawful charges you claimed back reduced a debt or, whether they were added on in excess of the debt outstanding.

[jon1965]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

Q.I.
You say that the DCA have written to you saying that they can not comply with the CCA and have closed the file, yet the well known court case (help me out here please people) clearly states that even if a debt is UE it can still be chased. As an example I have a letter from Cabot saying that they can not find the CCA and as such they can not enforce the debt until they can produce one, however this doesn't stop them from trying whjatever they can (apart from court) to collect.

A UE debt is not written off, it still exists.
As for the argument about reclaiming charges I really have no idea, but if B/C sold the debt for say 10% I am not sure why they can not offset their loss by the refund of unfair charges.

[alangee]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

PriorityOne

I am not sure what you are asking me, but I will give you an example.

My OH had an account with Goldfish. Goldfish sold the account to a DCA.

After the sale we sent a CCA to the DCA and an SAR to Goldfish.

The DCA came back eventually with "no agreement, but still owe debt". Goldfish confirmed no agreement in the SAR.

We reclaimed all the unlawful charges plus interest that Goldfish had levied on the account. Goldfish (by now Barclays) as is normal with creditors, offered to give my OH the difference between that charged and the £12 now charged. After a time of toing and froing we made a claim through the court and Goldfish paid out the full amount to my OH by credit transfer.

At no time was it even suggested that any amounts would be taken off the debt (now owned by the DCA).

I should add that this is not an isolated incident.

Does that help?

Alan

[helmsman]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

PriorityOne

I am not sure what you are asking me, but I will give you an example.

My OH had an account with Goldfish. Goldfish sold the account to a DCA.

After the sale we sent a CCA to the DCA and an SAR to Goldfish.

The DCA came back eventually with "no agreement, but still owe debt". Goldfish confirmed no agreement in the SAR.

We reclaimed all the unlawful charges plus interest that Goldfish had levied on the account. Goldfish (by now Barclays) as is normal with creditors, offered to give my OH the difference between that charged and the £12 now charged. After a time of toing and froing we made a claim through the court and Goldfish paid out the full amount to my OH by credit transfer.

At no time was it even suggested that any amounts would be taken off the debt (now owned by the DCA).

I should add that this is not an isolated incident.

Does that help?

Alan

Hi,
Sounds good to me

[PriorityOne]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

PriorityOne

I am not sure what you are asking me

What I am asking referes to 2 scenarios:

1). You had charges levied onto an account which when removed, left a balance in excess of the debt owed to the creditor.... meaning that they had your money.

2). You had charges levied onto the account which when removed, still left a debt balance, which was their money.

[alangee]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

What I am asking referes to 2 scenarios:

1). You had charges levied onto an account which when removed, left a balance in excess of the debt owed to the creditor.... meaning that they had your money.

2). You had charges levied onto the account which when removed, still left a debt balance, which was their money.

If scenario 1 had been an option, I would have claimed the monies and thus had the account closed by the OC, pocketing the balance. I would not have let it drag on if I was aware they owed me more than the balance on the account, even though we knew it was UE, because it would have put my wifes mind at rest.

So it is scenario 2. The DCA has an account that both they and Barclays have said is unenforcable and has now disappeared from my wifes credit file.

(I am using the first person in this because although the debt was my OH, I did the claiming)

Alan

[PriorityOne]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

If scenario 1 had been an option, I would have claimed the monies and thus had the account closed by the OC, pocketing the balance. I would not have let it drag on if I was aware they owed me more than the balance on the account, even though we knew it was UE, because it would have put my wifes mind at rest.

So it is scenario 2. The DCA has an account that both they and Barclays have said is unenforcable and has now disappeared from my wifes credit file.

(I am using the first person in this because although the debt was my OH, I did the claiming)

Alan

So you re-claimed charges that were part of a debt.... or in other words, they paid you their own money?

That's quite funny actually.... ....

Well done.....

[alangee]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

Dont forget that at this stage the OC has sold the debt on and set your account to zero. It is the DCA who is now chasing you for the full amount, so any claim you make to the OC - because they are the ones that imposed the charges - should be returned to you.

All of my claims have been under the same circumstances.

Alan

[Never-In-Doubt]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

My views on this are very similar to a lot of others, but as there are so many variations the easiest description is probably to say that when an OC assigns all rights as per s.189 then if you do a reclaim at a later date this would be against the original creditor meaning any refund offered should be paid directly to you as the OC would have no rights to sell (offset) the refund to an external DCA as the rights to the original debt were historically sold when the OC sold the debt.

So the main scenario would be charges. Lets say you had an old account that was £500 in debt, then years later a DCA writes claiming £2000. As a result of the charges you decide to do a charges reclaim. The lender agrees to a settlement and offers £X to reduce the original debt.

Because you never paid any charges, ie they were applied to the account after you 'left' it the refund should be repaid to the original debt so the bank would be correct in doing this regardless of assignee (they keep their own charges as write off, basically they don't have to refund you as you never physically paid the charges).

However, lets assume that you always had charges going back years (with an active account) then suddenly decide to reclaim. This would be dependant upon the assignee rights because if the OC had sold the account off in totality as per s.189 then you'd be entitled to the refund directly based on the fact the OC never had any rights to offset it against the debt which now belongs to Z DCA.

The same applies with PPI.

Ok so as regard the CCA issue and whether that constitutes acknowledgement of the debt - NO. A CCA (used from our templates) covers this by not asking for a copy of "my" CCA but instead asking for a copy of the alleged CCA.... It's all in the wording but you'll be fine if you've used our templates.

Payment into the account of any past charges (ie a refund of charges/ppi that is offset against the debt) does NOT acknowledge the debt either as it is applied as a retrospective refund meaning it's not actually payment into the account and anyway, it was never paid by you which needs to be the case to acknowledge the debt anyway.

Make sense?

That's my spin on things trying to cover as many scenarios as I can.

[Never-In-Doubt]

Re: Credit Card Company's Right of Set Off when Debt Has Been Sold

Dont forget that at this stage the OC has sold the debt on and set your account to zero. It is the DCA who is now chasing you for the full amount, so any claim you make to the OC - because they are the ones that imposed the charges - should be returned to you.

ONLY if the charges were ever paid by the customer. If the bank added £1k of charges and the customer had no contact throughout this period then the £1k refunded would go against the debt regardless of who legally owns the debt by assignee.

remember even when an OC assigns a debt in totality they retain rights for recourse meaning at any point they or the DCA can sell it back again - so in cases of extreme dispute the DCA would recourse the account back to the OC (without assignment or with, it doesn't matter as your original authority to the OC remains intact so long as you have any kind of 'relationship') meaning the OC would reduce the balance accordingly and resell the account or try and chase you internally based on the new info (ie your claim of a refund).

Only in exceptional cases do the banks actually refund charges back to the customer. It's usually PPI that goes direct as MattyA can confirm for me.