NSW Is Master Debt Sale Agreement Valid?
- Thread starter Marg4578
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I would suggest that if the date is missing in the document, the document is invalid and the DC (Debt Collector) does not have standing to sue as they cannot show an unbroken chain of documentation. In other words, their inability to show 100% traceability of their documentation is grounds for moving for dismissal of the case when in court.
Oh my god! Out of fear today, I proposed to enter into an arrangement, although my letter does say "without prejudice" at the top, which I think means they cannot take me to court as having admitted to the debt.
Are you a lawyer? i.e do you know what you are saying above for sure?
Are you a lawyer? i.e do you know what you are saying above for sure?
The notice of assignment is nothing more than a notice it means very little. The sender could have made it up. Be careful how you proceed here as you may be the subject of a scam.
I am not very certain of this but I think under the law you are required to be advised by both the original creditor (OC) and the DC that your account has been assigned to the DC. Should this not have been done, then I would include this in my defense submission which you will make in response to the plaintiff claims when it's served on you.
The whole debt collection process relies on fear, intimidation and a lack of knowledge on the part of the debtor.
I do not know to whom you asked the question about being a lawyer but I am certainly not a lawyer and nothing I say on this forum should be construed as legal advice. What I write on this forum is nothing more than my crazed rantings.
I would very quickly go to the magistrates court website in your state and look for forms on there that you can complete to lodge a defense. Suggest you do this with some urgency as while there is a timeframe for lodging your defense, you may have not been advised until late into the lodgement period.
Also, download the "Guideline for Debt Collectors and Debtors published by ASIC. There is some things listed in that document that you would be wise to request from the DC. Also request that they provide a copy of all the documentation they intend to rely on in court..
You may need to apply for an extension of time to lodge your defence from the court.
Remember this about going to court. While you are free to hire a lawyer if you wish and that is your decision, you do not have to prove anything. While the presumption of innocence is rapidly being taken away from us, there is a legal maxim or is it doctrine, to the effect that 'he who alleges must prove.'
This why we have in the law the right to silence, to ensure you do not self-incriminate and to ensure that he who alleges must prove. Know also, until the court rules to the contrary, anything the DC alleges is just that, an allegation so whenever referring to debt in communications with the DC you continuously use the words "alleged debt."
Know that as the DC has been assigned the debt, they step into the shoes of the original creditor and they have all the rights, responsibilities and obligations the original creditor had. This means they are responsible for providing you will all the documentation the OC was responsible for providing.
Know also, that if the DC has purchased the debt they will have purchased it for about 10 cents in the dollar and any money you give them will go into their pocket and not to the creditor.
The assignment agreement signed by the original creditor includes a clause whereby they surrender all rights, title and interest in the debt. This means that you do not owe the OC anything, The debt is now extinguished. The debt collector has effectively paid it off for you.
Don't feel guilty for the original creditor because as part of their risk management controls; they insure against debtor default and after they have sold the debt they claim on their insurance so they will not loose out.
Hope this helps
Hi @lifer,
In regards to what you said here:
"The assignment agreement signed by the original creditor includes a clause whereby they surrender all rights, title and interest in the debt. This means that you do not owe the OC anything, The debt is now extinguished. The debt collector has effectively paid it off for you."
I am getting different information from the Ombudsman. They quoted the Australian conveyancing law in regards to a notice of assignement being sufficient: CONVEYANCING ACT 1919 - SECT 12Assignments of debts and choses in action
That's where I get confused. I'd love to go with what you said but I can't see myself winning here. Have you done this yourself? I'd love to talk to someone who has actually gone to court and won their case.
In regards to what you said here:
"The assignment agreement signed by the original creditor includes a clause whereby they surrender all rights, title and interest in the debt. This means that you do not owe the OC anything, The debt is now extinguished. The debt collector has effectively paid it off for you."
I am getting different information from the Ombudsman. They quoted the Australian conveyancing law in regards to a notice of assignement being sufficient: CONVEYANCING ACT 1919 - SECT 12Assignments of debts and choses in action
That's where I get confused. I'd love to go with what you said but I can't see myself winning here. Have you done this yourself? I'd love to talk to someone who has actually gone to court and won their case.
Whether you choose to place more weight on the posts made by @lifer,
who by his own statement is not a lawyer, or on my posts,
is a matter of your own choice.
Remember, though, it's a Really Bad Idea to make big decisions
based on what some guy says on the internet.
I will say this, however.
(i) A debt is generally not extinguished by assignment - it's just that the creditor is different.
Sooner or later, if the debt can be shown to exist, then you will have to pay someone.
If what lifer said was universally correct, then the debt sharking industry would not exist.
(ii) Think less about the Ombudsman, and think more about a visit to a Community Legal Centre,
and/or a financial counsellor at the earliest opportunity.
And if the debt is more than about ten grand (ie more than a "small claim"), then get yourself a solicitor
This is not one of those times where if you look around long enough,
somebody will give you significant case-specific assistance for no fee.
(iii) Forget minor boo-boos in documents somehow magically freeing you from the debt.
These days, they are generally not fatal flaws of the kind you hear about from TV.
who by his own statement is not a lawyer, or on my posts,
is a matter of your own choice.
Remember, though, it's a Really Bad Idea to make big decisions
based on what some guy says on the internet.
I will say this, however.
(i) A debt is generally not extinguished by assignment - it's just that the creditor is different.
Sooner or later, if the debt can be shown to exist, then you will have to pay someone.
If what lifer said was universally correct, then the debt sharking industry would not exist.
(ii) Think less about the Ombudsman, and think more about a visit to a Community Legal Centre,
and/or a financial counsellor at the earliest opportunity.
And if the debt is more than about ten grand (ie more than a "small claim"), then get yourself a solicitor
This is not one of those times where if you look around long enough,
somebody will give you significant case-specific assistance for no fee.
(iii) Forget minor boo-boos in documents somehow magically freeing you from the debt.
These days, they are generally not fatal flaws of the kind you hear about from TV.
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