UK DD clawbacks and Simon Goldberg

[Tuco]

No Dave. It is not my argument. For the final time, forget about assigning the debt and forget about DCAs.

Watch Simon Goldberg's video. He explains it clearly. When you sign your loan agreement, it becomes a commercial instrument. It has value and it is your signature that guarantees it. The bank who loaned you the money then take a photocopy of the agreement, file the photocopy and then SELL the original. It is not "accidently" lost or put in a box in someones loft as Bones stupidly thinks, it is SOLD.

This is my problem and this is what idiots are asking me to prove.

Why do you think that there is NEVER an original and ALWAYS a photocopy? Why are the photocopies guarded so heavily?

It is your signature that guarantees the instrument yet you are never told this at disclosure stage. Nor are you told that the instrument may be traded many times throughout the industry. Nor are you told that your data could be exposed to God knows who.

No sane person would suggest that this course of action is ethical, moral or indeed lawful. Certainly, any contract entered into would not be able to be lawfully sold on. If a DCA get hold of the debt (and usually they do), you simply need to advise that the contract was breached by the original lender. I used to ask for sight of the original agreement, unstamped and unendorsed (to show that it hadn't been traded) and if they could not do this (which obviously they couldn't) then they would have to let a court decide if any money was outstanding.

I'm no expert on the trading side of things but I suspect this false creation of funds by adding digits to accounts (by trading these agreements) contributed heavily to the crisis the banking sector found itself in a few years back and the taxpayer had to bail them out because of it.

[Tuco]

Tuco wrote:

I have stated the agreement becomes voidable at the point at which the contract is breached (ie when a borrowers data is passed on to a 3rd party).

And no doubt you are going to post some case law that supports that claim.

It is blatant misrepresentation.

It does not need case law you crank.

We all know that there is a clause that permits the data to be passed to a 3rd party DCA on default but it is not carte blanche to pass a persons data on to any old Tom Dick & Harry.

In the case of signing an agreement with a bank, it is fraudulent misrepresentation as the bank knowingly make the statement whilst also knowing that the data will be passed on to the purchaser of the agreement.

[Henti]

Did you here that splash Tuco ?

That was what's left of your reputation going down the toilet.

[longdog]

Sadly no. It is hopelessly wrong.

For the avoidance of doubt, I have never stated that an agreement is void. I have stated the agreement becomes voidable at the point at which the contract is breached (ie when a borrowers data is passed on to a 3rd party). Pleas ignore imbeciles who stalk me but cannot read or write properly.

OK... Try to grasp this simple concept... An organisation is entitled to use your personal data for any lawful business purpose which includes passing that data on to a DCA for the purpose of collecting the debt you are contractually obligated to pay. If we were to follow your idiotic logic to its inevitable conclusion a creditor could not ask their lawyers to sue you for the same reason... They would have to pass your details on to a third party... The lawyer.

If you can find me just one, single case where the Information Commissioner has ruled a business cannot use personal data for legitimate debt collection purposes then go ahead.

You seem to think your precious data is sacrosanct when in reality businesses are perfectly entitled to use that data to attempt to get you to pay up or they can pass your data on to a third party when they sell the debt... Which they will have inevitably stated they can do in the contract you signed.

Because of the above there is no breach of the contract with you as they have done nothing which either the law or the contract says they can't do. For that reason your claim that the contract is voidable is false and even if it were voidable that wouldn't stop them collecting on the debt you owe.

You getting all precious about your personal data as a way of avoiding your debts means the square root of fuck all and I'm quite confident a court would be of the same opinion.

[Tuco]

Sadly you are still completely failing to understand.

You might wish to read my post to Dave at the top of this page. I've attempted to explain it in terms (I hope) that even people like you, Bones & Henti might understand.

[NYGman]

Sorry, this makes no sense. First violations of the DPA are against the company, and have nothing to do with the loan you sign. If a Bank fails to follow the DPA it could be in trouble, it may have to provide credit monitoring, but it will not invalidate the contract. Next, the original and the copy are one in the same. In fact, there are instances I deal with every day, where we copy the original in to our system, and certify the system copy is a match for the original, then the original is destroyed. Laws and rulings allow us to rely on the certified copy as if it were original. We are now in a digital world, digital representations can be considered the same as the original. So to say they sell the copy and keep the original is meaningless. Besides, you are not going to pay twice on the same note. Your obligations do not change because of an underlying sale. This whole original v copy is totally meaningless today. I believe this was all pointed out to you.

To Summarize...

DPA violations will not void the contract, but may get an institution in hot water. As selling debt and providing debtor information is common practice, and no DPA violations have been issued due to it, we can surmise that this activity is not a violation. That and most agreements provide for this exception anyway, negate this as a viable way to make an instrument voidable.

Under the law, a copy may be as good as an original. Real documents are hard to store, and also waste resources, Many large banks are now paperless, and all originals are either digitally imaged and stored, or recreated in a system that allows for tracking..

So what is your issue then??

[longdog]

Sorry, this makes no sense. First violations of the DPA are against the company, and have nothing to do with the loan you sign. If a Bank fails to follow the DPA it could be in trouble, it may have to provide credit monitoring, but it will not invalidate the contract. Next, the original and the copy are one in the same. In fact, there are instances I deal with every day, where we copy the original in to our system, and certify the system copy is a match for the original, then the original is destroyed. Laws and rulings allow us to rely on the certified copy as if it were original. We are now in a digital world, digital representations can be considered the same as the original. So to say they sell the copy and keep the original is meaningless. Besides, you are not going to pay twice on the same note. Your obligations do not change because of an underlying sale. This whole original v copy is totally meaningless today. I believe this was all pointed out to you.

To Summarize...

DPA violations will not void the contract, but may get an institution in hot water. As selling debt and providing debtor information is common practice, and no DPA violations have been issued due to it, we can surmise that this activity is not a violation. That and most agreements provide for this exception anyway, negate this as a viable way to make an instrument voidable.

Under the law, a copy may be as good as an original. Real documents are hard to store, and also waste resources, Many large banks are now paperless, and all originals are either digitally imaged and stored, or recreated in a system that allows for tracking..

So what is your issue then??

Up until I 'retired' I spent most of my working life in or around the microfilm and document management industry which is now the scanning and documentary industry (Hence my 'retirement' due to the death of microfilm... Curse you new technology!!!) and even 20+ years ago many banks would microfilm most routine documents and then bin the originals. In the absence of a clear reason otherwise a print out from microfilm was considered evidentially sound in court... And this was 20 years ago. The "I demand the original" might work with wills and mortgages but it won't work for a loan agreement. It didn't work with microfilm and it won't work for a digital copy either.

[Tuco]

The "I demand the original" might work with wills and mortgages but it won't work for a loan agreement. It didn't work with microfilm and it won't work for a digital copy either.

Yet it worked for me both times I demanded originals.

Funny that.

[noblepa]

Sorry, this makes no sense. First violations of the DPA are against the company, and have nothing to do with the loan you sign. If a Bank fails to follow the DPA it could be in trouble, it may have to provide credit monitoring, but it will not invalidate the contract. Next, the original and the copy are one in the same. In fact, there are instances I deal with every day, where we copy the original in to our system, and certify the system copy is a match for the original, then the original is destroyed. Laws and rulings allow us to rely on the certified copy as if it were original. We are now in a digital world, digital representations can be considered the same as the original. So to say they sell the copy and keep the original is meaningless. Besides, you are not going to pay twice on the same note. Your obligations do not change because of an underlying sale. This whole original v copy is totally meaningless today. I believe this was all pointed out to you.

To Summarize...

DPA violations will not void the contract, but may get an institution in hot water. As selling debt and providing debtor information is common practice, and no DPA violations have been issued due to it, we can surmise that this activity is not a violation. That and most agreements provide for this exception anyway, negate this as a viable way to make an instrument voidable.

Under the law, a copy may be as good as an original. Real documents are hard to store, and also waste resources, Many large banks are now paperless, and all originals are either digitally imaged and stored, or recreated in a system that allows for tracking..

So what is your issue then??

IANAL, but wouldn't a photocopy of, say, a mortgage agreement be "prima facie" evidence of the existence and validity of the contract? It is my understanding that prima facie evidence is assumed to be valid, but may be rebutted. If not rebutted then it is accepted as true.

That means (at least to my simple mind) that if a bank brings a photocopy of my mortgage agreement to court, I can try to prove that it is a forgery or otherwise invalid, but the burden of proof of its invalidity lies with me. The bank does not have to prove that it is valid; I have to prove that it is not.

Please bear in mind that my legal knowledge is based on US law, but US law derives most of its principles from British law.

[daveBeeston]

Tuco i do get what your saying and i now know what your on about now and the selling on of loans and mortgages has been going on for years and is perfectly legal, a lot of banks and other institutions do so to free up capital and that is covered under this part of the agreements(which bones posted),
Can we transfer our rights under this agreement?
14. We may transfer our rights and our obligations under
this agreement to a third party, including information about
you and how you have managed the loan which the third
party needs to know.

The fact that they have sold on the loan/ mortgage does not constitute a breach of the agreement/contract and nor does it absolve the borrower from having to repay the loan/mortgage at the terms they originally agreed with the lender, if it did then pretty much every loan or mortgage would be voidable and the banking industry would cease to function.

I do think that due to our understanding and the understanding you have you really do need to cite the relevant case law to prove that what your saying is correct, that way we can see where we have it wrong(if we do).

[Bones]

If you can find me just one, single case where the Information Commissioner has ruled a business cannot use personal data for legitimate debt collection purposes then go ahead.

The complete opposite is true

https://ico.org.uk/for-organisations/gu ... rocessing/

What is the “legitimate interests” condition?

The Data Protection Act recognises that you may have legitimate reasons for processing personal data that the other conditions for processing do not specifically deal with. The “legitimate interests” condition is intended to permit such processing, provided you meet certain requirements.

The first requirement is that you must need to process the information for the purposes of your legitimate interests or for those of a third party to whom you disclose it.

Example

A finance company is unable to locate a customer who has stopped making payments under a hire purchase agreement. The customer has moved house without notifying the finance company of his new address. The finance company engages a debt collection agency to find the customer and seek repayment of the debt. It discloses the customer’s personal data to the agency for this purpose. Although the customer has not consented to this disclosure, it is made for the purposes of the finance company’s legitimate interests – ie to recover the debt.

The second requirement, once the first has been established, is that these interests must be balanced against the interests of the individual(s) concerned. The “legitimate interests” condition will not be met if the processing is unwarranted because of its prejudicial effect on the rights and freedoms, or legitimate interests, of the individual. Your legitimate interests do not need to be in harmony with those of the individual for the condition to be met. However, where there is a serious mismatch between competing interests, the individual’s legitimate interests will come first.

Example

In the above example, it is clear that the interests of the customer are likely to differ from those of the finance company (it may suit the customer quite well to evade paying his outstanding debt). However, passing his personal data to a debt collection agency in these circumstances could not be called “unwarranted”.

Finally, the processing of information under the legitimate interests condition must be fair and lawful and must comply with all the data protection principles.

Example

Continuing the above example, the finance company must ensure that the personal data it passes to the debt collection agency is accurate (for example, in the known details of the customer’s identity); that it is up to date (for example, in the amount outstanding and the customer’s last known address); and that it is not excessive – the agency should only get as much personal data as is relevant or necessary for the purpose of finding the customer and recovering the debt.

[Henti]

Yes and the remedy for a void agreement is rescission, which would mean repaying the debt.
And as rightly said the breach would have no effect the contract in any cas

I

[Tuco]

Tuco i do get what your saying and i now know what your on about now and the selling on of loans and mortgages has been going on for years and is perfectly legal, a lot of banks and other institutions do so to free up capital and that is covered under this part of the agreements(which bones posted),
Can we transfer our rights under this agreement?
14. We may transfer our rights and our obligations under
this agreement to a third party, including information about
you and how you have managed the loan which the third
party needs to know.

The fact that they have sold on the loan/ mortgage does not constitute a breach of the agreement/contract and nor does it absolve the borrower from having to repay the loan/mortgage at the terms they originally agreed with the lender, if it did then pretty much every loan or mortgage would be voidable and the banking industry would cease to function.

I do think that due to our understanding and the understanding you have you really do need to cite the relevant case law to prove that what your saying is correct, that way we can see where we have it wrong(if we do).

Dave

Firstly, I have never said it is illegal. I have simply stated that it should be disclosed prior to the signing of a contract.

As usual, Bones posted nothing but worthless drivel. The bank does not assign the rights, it keeps them, selling literally just the bit of paper containing the agreement.

In laymens terms, Bank A takes out the agreement with the borrower and lends him £5,000.

Bank A then sells the bit of paper containing the agreement to Bank B for £5,000. Bank A keeps a photocopy of the agreement.

After 3 years, the borrower has repaid the loan. Bank A gets £5,000 back from the borrower plus £2,000 interest, meaning they make a profit of £2,000 on the deal. However, in addition, Bank A has also sold the piece of paper that the agreement is written on, adding another £5,000 profit to the deal.

Bank A DOES NOT sell the whole package, it simply sells the piece of paper that the agreement is written on.

The rights remain with Bank A and the borrower continues to repay installments to Bank A.

Everyone knows that there is no case law on this as no DCA has ever challenged it. There is only normal contract law which if someone needs to be shown, then they shouldn't be commenting on the subject.

[NYGman]

Now for a real life example

Bank A issues a loan to Person X for 5k @ 10% interest for 3 yr term Assuming simple annual compounding interest that is 5K principal and 1,655 of interest. bank takes the 1,655 interest and using a PV Calc, determines that they can sell it today for $800. Bank A gets 5,800 from Bank B to acquire the loan. Bank A makes $800.

You still pay $6,655 on the loan (10% interest for three years) but Bank B's profit is reduced by the $800 they paid for the note.

You never pay more that the principal and interest. The Issuer gets an advance on the interest from Bank B. Bank B assumes full payment, and recognizes the income from the difference between their purchase price 5,800 and the full proceeds, $6,655.

Where is the extra profit, where is the double Dip??? It doesn't exist. You have an agreement to pay principal and stated interest, that is the maximum you can pay ever.

[longdog]

In laymens terms, Bank A takes out the agreement with the borrower and lends him £5,000.

Bank A then sells the bit of paper containing the agreement to Bank B for £5,000. Bank A keeps a photocopy of the agreement.

After 3 years, the borrower has repaid the loan. Bank A gets £5,000 back from the borrower plus £2,000 interest, meaning they make a profit of £2,000 on the deal. However, in addition, Bank A has also sold the piece of paper that the agreement is written on, adding another £5,000 profit to the deal.

Ah yes... In layman's terms... A layman who doesn't know what the fuck he's talking about

In this parallel universe what's in it for Bank B? They buy the agreement from Bank A for £5000 and get what exactly in return?

[Henti]

Yes the transfer of rights, does not influence what is required under the contract.

There is an argument which says that duties cannot be transferred, under common law. But this does not effect the new owners rights.

[Henti]

In laymens terms, Bank A takes out the agreement with the borrower and lends him £5,000.

Bank A then sells the bit of paper containing the agreement to Bank B for £5,000. Bank A keeps a photocopy of the agreement.

After 3 years, the borrower has repaid the loan. Bank A gets £5,000 back from the borrower plus £2,000 interest, meaning they make a profit of £2,000 on the deal. However, in addition, Bank A has also sold the piece of paper that the agreement is written on, adding another £5,000 profit to the deal.

Ah yes... In layman's terms... A layman who doesn't know what the fuck he's talking about

In this parallel universe what's in it for Bank B? They buy the agreement from Bank A for £5000 and get what exactly in return?

Yes this "bit of paper "was a negotiable instrument an hour earlier.

[Tuco]

In laymens terms, Bank A takes out the agreement with the borrower and lends him £5,000.

Bank A then sells the bit of paper containing the agreement to Bank B for £5,000. Bank A keeps a photocopy of the agreement.

After 3 years, the borrower has repaid the loan. Bank A gets £5,000 back from the borrower plus £2,000 interest, meaning they make a profit of £2,000 on the deal. However, in addition, Bank A has also sold the piece of paper that the agreement is written on, adding another £5,000 profit to the deal.

Ah yes... In layman's terms... A layman who doesn't know what the fuck he's talking about

In this parallel universe what's in it for Bank B? They buy the agreement from Bank A for £5000 and get what exactly in return?

Bank B then sell it on to Bank C. At some point no doubt, Bank B will also sell an instrument on to Bank A.

I had to refer to it as "a bit of paper" in a final effort to get people like you and the chimp to separate it from the actual loan.

You may also wish to know that on the rare occasions that these agreements do resurface, they contain several stamps or endorsements, each one indicating that a transaction/sale has taken place.

The more informed on this forum readily accept that this trading takes place. I'm sorry if its not what you want to hear but hey-Worse things have happened at sea eh?

[Pottapaug1938]

In laymens terms, Bank A takes out the agreement with the borrower and lends him £5,000.

Bank A then sells the bit of paper containing the agreement to Bank B for £5,000. Bank A keeps a photocopy of the agreement.

After 3 years, the borrower has repaid the loan. Bank A gets £5,000 back from the borrower plus £2,000 interest, meaning they make a profit of £2,000 on the deal. However, in addition, Bank A has also sold the piece of paper that the agreement is written on, adding another £5,000 profit to the deal.

Ah yes... In layman's terms... A layman who doesn't know what the fuck he's talking about

In this parallel universe what's in it for Bank B? They buy the agreement from Bank A for £5000 and get what exactly in return?

They get the income stream.

Back when I practiced real estate law, I would advise clients that their mortgage would likely be sold after they gave it to the First National Bank of Enfield. When they asked why, I said that, say, the FNB of Enfield wanted money in their coffers which they could use again, and wanted to insulate themselves from the risk that the mortgagors/buyers would default on the mortgage. Thus, they sold the mortgage; and the right to do so was contained in the terms of the mortgage and in the disclosures provided to the buyers. They have to "discount" the note; but even after the discounting they make a profit on the deal.

The buyer, who wanted an income stream, was willing to assume this risk; but by buying the mortgage and note at a discount, they also protected themselves from the risk of default. Thus, you get happy parties all around: the buyers/mortgagors, who have a house/condo/business, the mortgagees/assignors, who get money to re-lend or re-use, and the note buyers/assignees, who get an income stream which will give them a profit on the deal.

Each assignment is recorded with the Registry of Deeds (or, for registered land in Massachusetts, filed with the Land Court). When the mortgage note is paid off, the discharge is likewise recorded/filed.

[longdog]

In laymens terms, Bank A takes out the agreement with the borrower and lends him £5,000.

Bank A then sells the bit of paper containing the agreement to Bank B for £5,000. Bank A keeps a photocopy of the agreement.

After 3 years, the borrower has repaid the loan. Bank A gets £5,000 back from the borrower plus £2,000 interest, meaning they make a profit of £2,000 on the deal. However, in addition, Bank A has also sold the piece of paper that the agreement is written on, adding another £5,000 profit to the deal.

Ah yes... In layman's terms... A layman who doesn't know what the fuck he's talking about

In this parallel universe what's in it for Bank B? They buy the agreement from Bank A for £5000 and get what exactly in return?

They get the income stream.

Not in Tuco's example they don't... Bank A gets it all and Bank B gets... Err... Nothing. They buy a £5000 debt for £5000 but the bank they buy it from still get the capital repayments and the interest. Obviously this makes great financial sense... Said nobody ever.