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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70193
Experience:  Over 5 years in practice
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Regarding debt. If someone has got unsecured debt being managed

Customer Question

Regarding debt. If someone has got unsecured debt being managed by a debt management company (DMC) and the original DMC is taken by another DBC no document signed from the creditor however the new DMC draws payment from the creditor and continues paying creditors. Original creditors sold debts to deb collectors (DC) and DC sold the debt to other DC. DMC continues paying to the new creditors (without any signature of the creditor). All of this for more than 6 years. Would it be possible that the existing could be considerd statute barred debt? I would appreciate your comment and I am thanking in anticipation
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
I presume you have been paying the credit throughout?
Customer: replied 2 years ago.

yes

Expert:  Jo C. replied 2 years ago.
Thanks. I just need 10 minutes to dictate an answer but I’m afraid it’s bad news.
Expert:  Jo C. replied 2 years ago.
Thank you.
I'm really sorry but I cannot give you good news.
Of course, this is debts that can be subject to time barring but time runs from the date of last acknowledgements and you haven't been paying throughout. That will mean that time has not stopped unfortunately.
There is really no more complication in this than that. This is an ongoing debt because you have been paying.
I'm very sorry but I can only give you truthful information.
Can I clarify anything for you?
Jo
Jo C., Barrister
Category: Law
Satisfied Customers: 70193
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you for confirming my initial thoughts. Continuing with the same question. What would be the best defence for the debtor to the creditors for not continuing paying to the debt and be successful? I would appreciate your comments

Expert:  Jo C. replied 2 years ago.
There isn't a defence on these facts. I presume that the money was borrowed and used and it has to be paid back I'm afraid.
The fact of selling the debt on does not mean it isn't due I'm afraid.
Customer: replied 2 years ago.

Thank you for your comments.

Is it not a defence for the debtor that the new owner of the debt has to prove that has acquired from the original creditor? If this is not done then there such a debt (I think this is under a 1925 Act) does not exist? If case went to court the Judge would be asking for this evidence (cannot remember the name) and if this is not produced then case could be thrown out? I would appreciate your comments.

Expert:  Jo C. replied 2 years ago.
No.
All they have to do is show that the money was borrowed and that they are currently empowered to collect.
The Judge would not be interested in the 1925 Act I'm afraid. All that is a complete myth.
Customer: replied 2 years ago.

Thank you for your comments.

You mentioned that the they have to show that the money was borrowed and they are empowered. I presume there is a definition of to have to show and they are empowered under some relevant Act? In this case the original creditor was over 6 years ago.

If there is no such definition in any relevant Act there has to be some sort of standard/format which is acceptable i.e. signature of debtor/creditor, when the borrowing occurred by whom etc. otherwise it would be farcical anyone could demanding money after certain time. I would appreciate your comments.

Expert:  Jo C. replied 2 years ago.
There isn't a definition in legislation. It is just something that all claimants at court have to show to prove their case.
I'm really sorry but it is a complete myth that I know is widespread on the internet that you can escape repaying money that you have borrowed on the basis that there is a minor error in the documents.
There could be many ways of proving this and it doesn't help that you have been paying it which takes any argument that you don't owe it clear to the ground.
One way could be to produce the original contract unsigned. Evidence of the transfer could be another. A statement from the original creditor etc.
Customer: replied 2 years ago.

Thank you for your replay.

So there are no rules/standards within the legislation regarding the new creditor to demonstrate on how they have been empowered not even a Notice of Assignment pursuant to Law of Property Act 1925?

If there was no such rules/standards then there is business niche for Debt Collector companies (DBC) to check in Experian, etc for customers who have borrowed in the past and chase them for non payment (even if they have fully paid their borrowings) as the majority do not keep receipt. By the way I am not aware that DBC are doing these sort of things. However, I hope you can see the point.

I would appreciate your comments.

Expert:  Jo C. replied 2 years ago.
That particularly legislation doesn't apply to this type of debt.
I am really sorry but I cannot agree that these points give you a defence.
In any event, that is easy enough to plug up for them by just getting statements from the other companies.
Customer: replied 2 years ago.

Thank you very much for your comments.

I would appreciate if you would like to tell me where in the web I could find case law regarding debtors (common people) vs creditors where i could be able to see the the common cases. I am thanking you once again for all your help.

Expert:  Jo C. replied 2 years ago.
It depends what you are looking for.
I do not use the internet otherwise than my own subscription to westlaw.
There is quite a lot here
http://www.legalbeagles.info/forums/forumdisplay.php?382-Consumer-Credit-Act-Case-Law
and quite a lot of nonsense.
Customer: replied 2 years ago.

Thank you for the link and your advice.

One more question, regarding to the initial question. Although you have dismissed all my arguments I was thinking that in Housing legislation and particularly when serving eviction notices they have to follow an strict procedure when serving these notices. By extrapolation Creditors don't owe similar strict rules towards their customers (debtors) i.e. keeping them informed that they are going to sell their debt, etc, and keep evidence of the steps taken towards them?

I would appreciate your comments

Expert:  Jo C. replied 2 years ago.
Well, its really as I've said.
Housing legislation has no application and there is no duty to inform debtors if a debt is sold.
Customer: replied 2 years ago.

Thank you for your reply.I am aware that Housing Legislation has no application, however, I have brought it as an analogy. Is it there any case law to support that creditors do not have a duty to inform debtors that the debt has been sold? it is my understanding that there are code of practice (quasi law) regarding to the best practices and judges tend to follow the best practices. I would appreciate your comments.

Expert:  Jo C. replied 2 years ago.
No, but there is no case law to support the argument that the debt cannot be pursued if they do not which is your point.
There are codes of practice but they are nothing even remotely like quasi law and the Judge will completely ignore them.
Customer: replied 2 years ago.

Thank you for your comments. I have not said that the debt cannot be pursued what I implied was that if case was pursued through the Courts then the Judge was likely to dismiss the case due to some practical irregularities i.e. not formally informing the debtor of the action taken by the creditor and subsequent buyers. I am referring to this as I have said earlier the 'creditor' needs to prove that the 'debtor' owes money. I understand that the issue debt/creditor can be pursued but through the courts the onus would be on the creditor to prove that the debtor owes and debtor has created a contract with the new creditor. I would appreciate your comments.

Expert:  Jo C. replied 2 years ago.
Yes, I guessed that was your point and I'm afraid I cannot agree.
It is the type of stuff that is widely on the internet and unfortunately has no basis.
The onus is on the creditor but they are not going to need to show that they notified the debtor of a sale.
Customer: replied 2 years ago.

Thank you for all you replies. I am concerned that you have dismmissed most of my arguments, however, in no one momments you have mentioned that under the consumer protection Act a lender in order to be lawful has to comply with a number of sections. If a borrower, becomes a debtor and the lender decides to sell the debt then it has to comply with a protocol stipulated within the CPA1974 otherwise the debt could not be enforced through the Courts.

i would appreciate your comments

Expert:  Jo C. replied 2 years ago.
I am afraid I cannot agree with that for the reasons above.
Best of luck with that argument.
I will opt out to see if others have a different view.
Customer: replied 2 years ago.

Thank you for your final comments. I think you are right it would be better to check with others to see their views. I fully aware that feelings and the law do not go together. It is awful to think tha someone does not want to pay a debt. However, in my opinion everyone wants to pay a debt which is lawful in the first place. Although I am not entirely sure whether your comments were supported by the spirit of the law I have nevertheless appreciated your comments.

Expert:  Ash replied 2 years ago.
I see the expert has opted out. I have to agree with the expert.
As long as the original debt could be assigned then it makes no difference what arrangements have been made with the new company. What you also do not recognise is that if you have been paying the new company for the old debt then by doing that you show you accept the debt.
You simply just can't get the debt written off like that. Even assuming that the old contract was defective the courts have power to rectify any agreement and declare that it can be enforced.
It has been and is being paid, this show acceptance no matter if there is a defect.
Does that clarify?
Alex