Property Law Act 1969 WA (selling of debts)
This Act is in other States also. Just do a search for your Act and then the section “Assignment of debts” in your State Act, or reference s117 Commonwealth of Australia Constitution and use the Western Australian Act.
Victoria https://www.legislation.vic.gov.au/in-force/acts/property-law-act-1958/139 (s134)
Western Australia https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_756_homepage.html (s20 below)
20. Assignment of debts and choses in action
(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim that debt or chose in action, is effectual in law (subject to equities having priority over the right of the assignee), to pass and transfer from the date of the notice —
(a) the legal right to that debt or chose in action;
(b) all legal and other remedies for the debt or chose in action; and
(c) the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor.
(2) Where the debtor, trustee, or other person liable in respect of the debt or chose in action referred to in subsection (1) has notice —
(a) that the assignment so referred to is disputed by the assignor, or any person claiming under him; or
(b) of any other opposing or conflicting claims, to the debt or chose in action,
he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the debt or chose in action, or pay the debt or other chose in action into court, under the provisions of the Trustees Act 1962.
(3) For the purposes of this section any debt or other legal chose in action includes a part of any debt or other legal chose in action.
Deed of Assignment
More information from https://www.livingfree.community/posts/deed-of-assignment (Living Free Movement member page only, includes webinar on this topic with Darren Dixon)
There are Acts you can reference/use in regards to discharging liabilities when a debt collector makes a claim against you. The provisions within these Acts allow you to hold to account collectors making false claims against you regarding money you may or may not owe.
In Victoria, The Property Law Act 1958, Section 134 “Legal Assignment of things in action.” outlines certain provisions the assignee and assigner must adhere to in order for the recovery of the debt to be legal.
The importance of the “Deed of Assignment” in the legal recovery of debts.
As most often is the case, the debt collectors are not in possession of the original Deed of Assignment (which is required to lawfully collect and establishes a valid claim) making their claim against you invalid.
When a bank sells (assigns) a debt to a debt collector they are assigning all their legal rights and claim to the debt collector. When they take this action they are required under the Act to notify you. More often than not, this does not occur. You have no knowledge of the debt having been sold to a third party and now this third party is calling you demanding you now pay them money or “allegedly” owed someone else. If you dispute their claim against you, the debt collector has 14 days to provide further and better particulars to evidence their claim.
Your Notice of Demand for further and better particulars should include:
- Request for copy of the original contract
- Request for copy of the Deed of Assignment
- Request for evidence that the original lender notified you in writing regarding the assignment of the debt and proof you received it
The Dealing with Debt Collectors process includes all the Notices required to hold the debt collectors accountable to produce documented evidence that they have a legal claim. In most cases, they are unable to provide evidence as it does not exist.
The ACCC Debt collection guidelines for collectors and creditors may also be useful to review if you suspect a debt collector of breaching guidelines and wish to Notice them of the breach.