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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I have signed a loan agreement under the consumer credit act

Resolved Question:

I have signed a loan agreement under the consumer credit act . I have defaulted and the original creditor apparently has assigned my debt to a third party who is now suing me pursuant to the original debt and the assignment. However, I have never received any notice in writing of the assignment which I understand is necessary assignment to be effective . In the court papers they have produced a letter dated 9th April 2014 saying the debt was assigned on the 20th March 2014 I never received this notice.
My first question is does Section 196(4) LPA apply, namely should they have sent it by registered mail so they can prove it was sent or is s.196 not applicable
My second question is that in the documents produced the assignee says despite the debt being assigned on the 20th March 2014 but it was not actually purchased until 14th May 2014. Does anything turn on this disparity in dates?
Thanks. I look forward to hearing from you
Allen Elliott
Submitted: 2 years ago.
Category: Property Law
Expert:  Ash replied 2 years ago.
Alex Watts :

my name is ***** ***** I will help you with this.

Alex Watts :

Does your agreement allow to be assigned please?

Alex Watts :

How much is the Court summons for?

Customer:

The contract is with SOPACHECK and whilst has no express right of assignment says :

Alex Watts :

Yes?

Alex Watts :

How much is the debt for?

Customer:

Sorry, the reply came back before I had finished.

Alex Watts :

Sure

Customer:

The CCA is with Shopacheck and there is no express right of assignment but it says:" WE MAY ALLOW ANOTHER PERSON TO TAKE OVER OUR PART OF THE AGREEMENT . THAT PERSON WILL THEN TAKE OVER ALL RIGHTS & RESPONSIBILITIES UNDER TIS AGREEMENT".

Alex Watts :

Ok. How much is owing?

Customer:

It also says "your data may be used ....if we transfer , change or assign this agreement to athird partyor if we use a third paty to manage any aspect of this agreement we will pass your information to them"

Customer:

The assignee is is not licensed or registered under the CCA -does that matter?

Customer:

The amount claimed is £425.41 plus costs making a total of £510.41

Alex Watts :

Have you filed a defence?

Customer:

Yes

Alex Watts :

What did you raise in the defence?

Customer:

That I had not received any notice pofd assignment of the debt, but Iam happy to apply to amend my defence if youthink it's worth it

Customer:

Allen

Alex Watts :

Did you ever receive a notice of assignment?

Customer:

No,

Alex Watts :

Ok. Have they sent you a witness statement yet?

Customer:

yes

Alex Watts :

Does it exhibit a notice assigning or transferring it?

Customer:

Yes,

Alex Watts :

Ok, but you say you did not get it?\

Customer:

yes, it's my word against theirs unless section 194(6) LPA is applicable?. That is why I asked that question at the outset

Customer:

Sorry the relevant section is 196(4)

Alex Watts :

That is what was pleaded in their claim form?

Alex Watts :

What was the debt in relation to?

Customer:

No it is very poorly pleaded. It says " the claim is balance due under an agreement which is now due and payable" There is no mention of the original CCA with shopacheck or the assignment.

Alex Watts :

OK. What was the original debt for?

Customer:

As I have already said the debt relates to an agreement under the Consumer Credit Act [CCA]

Alex Watts :

Ok. Section 196 does not apply

Alex Watts :

Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F196by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

Alex Watts :

That states it must be sent registered.

Alex Watts :

In any event that only applies in relation to land.

Alex Watts :

This is a debt under the CCA and therefore does NOT apply.

Alex Watts :

So you have a defence under:

Alex Watts :

1) CCA they are not registerd

Alex Watts :

2) They can not plead Section 196

Alex Watts :

3) Their assignment is not valid

Alex Watts :

Can I clarify anything about this today please?

Customer:

You say they can not plead s.196 but in layman's language are you saying that s.196 is applicable in this case so unless they have complied the assignment is not valid?

Alex Watts :

No, they have not pleaded it in the claim form, therefore can not rely on it

Customer:

Also, are you saying that if the assignee is not registered /licensed under the CCA they can not sue CCA debt?

Alex Watts :

Even if they could, its not valid in any event. It is only meant on land.

Alex Watts :

Indeed if they are not licenced under the CCA its a valid argument to say they can not sue CCA debt

Customer:

Sorry to be pedantic, are you saying the assignment is not valid because I have not received notice , if that is the case it worries me as it's my word against theirs so , other than that why do you say it's not valid?

Alex Watts :

1) Its not valid because you didnt get it

Alex Watts :

2) They cant rely on S.196

Alex Watts :

3) They are not regulated

Alex Watts :

4) They did not PLEAD S.196

Customer:

.Thank you

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