NSW Is Master Debt Sale Agreement Valid?

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Rod

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27 May 2014
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I agree with Tim. Unless the date was absolutely crucial to proving some important fact, having it missing is not going to make your problem disappear.

If you genuinely owe the money, think seriously about a payment plan you can afford.
 

nobody

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16 January 2016
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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.

A couple of things.

What the Conveyancing Act 1919 - Sect 12 Assignments of debts and choses in action definitely only requires a an Assignment Notice, no doubt about that.

However, if it were me, I would be definitely be asking for a copy of the deed of assignment because I would not want to act on that NOA alone when anyone could have sent that and then in 6 months time I get another NOA from someone else saying I now have to pay them.

Secondly, whilst the Financial Ombudsman and most likely our lawyer friends on this site, have that view, I take the view that perhaps when the statute makers made that law, they did not take into account other effects of that law, namley that when the OC assigns the debt to someone else, they accept money in return. While the statute makers many not have intended to be so, neverthe less, it extinguishes the debt.

Think of this from the DCs perspective. When they buy the debt and they collect the debt, they dont want the OC to come back to the OC any say 'now that you got that, we'll have that because the debt was to us in the first place." and take the DC to court to get the money the debtor paid to the DC back?

This is why the assignment contract requires the OC to surrender their right, title and interest in the debt, so they can keep what ever they collect off the debtor without risk of the OC trying to get their hands on it.

Now again, the writers of the statute may not have intended money paid to the OC to extinguish the debt but it has the effect of doing that anyway whether they Ombudsman want to admit to that is another matter. Have you ever heard of an OC pursuing the debt after its been assigned?

Now doubt the statutes also say the DC has the right to collect the debt but as I see it, the word "collect" means they have the right to persue the debt. Now if it were me, I would not hand the money over simply because they asked for it.

Don't forget that you do not have a contract with the DC. If someone stuck their face in front of me and said, "Hey, you, you owe me xyz dollars because I've got this bit of paper that says so." I would say, 'well if you think I owe some money show me a contract that has yours and my wet signatue on it, in which it is stated that I agreed to pay you xyz dollars if not go away."

In fact, I would send them this letter:


Date:

Reference Number:

Dear Interloper

I do not acknowledge any debt to your company or any other legal entity.

Thank you for your recent contact dated …

At best the document is merely an alleged notice and nothing else as it provides no supporting proof that I owe anyone any money at all. Due to this lack of proof, I am now very concerned that such an attempt is being made.

If however, you believe you have a lawful right to demand money from me please provide the following documentation as proof of your claim.

Please provide me with the following: (delete any of these items that do not apply to you)

· What the money you say I owe is for.
· Explain and show me how you specifically calculated the entire amount of what you say I owe.
· Provide me with copies of any and all papers that show I agreed to pay what you say I owe to include original signatures.
· Identify the original creditor.
· Provide me with a copy of any judgment you say gives you the right to collect anything from me.
· The deed of assignment and/ or deed of ovation
· The notice of assignment
· The default warning letter
· The default notice

In the absence of the above-mentioned documentation, I will have no option but to conclude your claim is an attempt to defraud me of $xxx. I remind you that fraud is a criminal offence in xxxxx and carries penalties which may include a term of imprisonment.

Until all the documentation listed above is provided to me for my review and verification I will regard the matter as closed.

Upon review and verification of the authenticity, which includes assessment of traceability of the documentation and review of your legal standing to demand money from me, which I anticipate will take approximately 90 days to complete, I will communicate with you further on the matter in writing.

Be advised that the only form of communication I will engage in with you in relation to this matter is in writing only. I will not engage in oral discussion with you regarding this matter. Having advised the means by which communication will take place, any personal contact from you or any member of your organisation or those of any related entity, is unwelcome and may constitute harassment or unconscionable conduct and is likely to be reported to the relevant consumer authority and the relevant collection agent licensing authority.

Note that you or any member of your organisation or those of any related entity, do not have my consent to enter my property. This states laws on trespass are available from the State Government Publisher. It is recommended that you famialirse yourself with the contents of these laws.

Notice to Principal is Notice to Agent. Notice to Agent is Notice to Principal. Without Recourse – Non-Assumpsit

Calls maybe recorded.

Strictly no right of usufruct non-negotiable.
 

Rod

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This looks like an 'Organized Pseudolegal Commercial Argument' that has been tried overseas and failed. Made (in)famous in the Meads v. Meads (2012 ABQB 571 (CanLII)) Canadian case.

If you have time, read this from the University of Calgary in Canada. It was written 4 years ago but is still relevant today.