Help - Mum being taken to court by Link Financial.

[someone_else]

Another couple of questions that have popped into my head whilst reading other threads - whilst they have asked for a stay to try and settle the matter, they have not actually made an offer.

 

I've also just noticed that whilst I scanned in the cover letter for the AQ I didn't post it, here it is AQ Cover Letter - now what do they mean by the last paragraph? - if they rely on this letter in court, it seems to me to be in my mums favour - the docs weren't supplied in aug08, what was supplied isn't good enough and we don't need to submit an amended defence because they haven't provided any more infomation (apart from lying about when the docs were sent). Also for some reason they have started putting their name in the company line when it used to be what they thought was the orginal creditor - is that important or not?

[TheChancellor]

bump

[someone_else]

So we finally received some paperwork from the court about two weeks ago ordering:

 

(points 2 and 3 have been copied completely from the letter)

IT IS ORDERED THAT

1)The claimant shall by 4pm on the 2nd Feb 2009 serve on the Defendant:

 

-Complete copy of agreement dated 16/08/05 referred in PoC

-Default notice referred in PoC

-Notice of assignment

-Detailed breakdown of amount claimed

 

2)The defence is struck out because (a) it does not disclose any reasonable grounds for defending the claim and (b) it is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings.

 

3)The Defendant shall file and serve a further statement of case by 4pm on 16/02/09. This must set out a coherent statement of the facts which, if true, amount in law to a defence to the claim.

 

4)You can appeal this order if you want within 7 days.

1) - Link as of today haven't provided any documents as ordered by the court and the deadline has gone (on initial reading on the form I did think today was the deadline not the 2nd - but they have had plenty of time now)

 

Do we now write to the court telling them no documents have been supplied and ask the court to throw the case out?

 

2) - the defence being struck out is this normal or a bad sign (does it need to be struck out before a new defence can be filed?) - we basicly stated they have failed to supply the docs and what they have supplied is full of errors (is it possible that the court weren't given all the docs we were, as their AQ only attached half the contract, two default notices and sale of debt letter).

 

3) is a little difficult at the moment due not having new info (I take it this is their plan dont sent any docs so we cannot defend and they think they win?) can we ask for this to be extended if the court does not throw out the claim - to 14 days after they supply the docs if they ever do.

 

Again thanks for any help

 

Also shouldn't these companies get into trouble for ignoring orders from courts, lying and ignoring the rules - the orginal docs sent were provided outside the timescale required by law, they submitted their AQ past the deadline and lied on it, and have now ignored an order from the court.

[pt2537]

So we finally received some paperwork from the court about two weeks ago ordering:

 

(points 2 and 3 have been copied completely from the letter)

 

1) - Link as of today haven't provided any documents as ordered by the court and the deadline has gone (on initial reading on the form I did think today was the deadline not the 2nd - but they have had plenty of time now)

 

Do we now write to the court telling them no documents have been supplied and ask the court to throw the case out?

 

2) - the defence being struck out is this normal or a bad sign (does it need to be struck out before a new defence can be filed?) - we basicly stated they have failed to supply the docs and what they have supplied is full of errors (is it possible that the court weren't given all the docs we were, as their AQ only attached half the contract, two default notices and sale of debt letter).

 

3) is a little difficult at the moment due not having new info (I take it this is their plan dont sent any docs so we cannot defend and they think they win?) can we ask for this to be extended if the court does not throw out the claim - to 14 days after they supply the docs if they ever do.

 

Again thanks for any help

 

Also shouldn't these companies get into trouble for ignoring orders from courts, lying and ignoring the rules - the orginal docs sent were provided outside the timescale required by law, they submitted their AQ past the deadline and lied on it, and have now ignored an order from the court.

The correct and proper course of action when the claimant is in default of an order is to make a formal application on a N244 asking for the case ot be struck out

 

i am unsure of what the defence contained but i would suggest that without the agreement which the other side relies upon you are unable to plead effectively or at all

[someone_else]

Is there a way of doing it without having to send a N244 as that costs money - can we just send a letter to the court informing them that Link have ignored the order and we cannot resubmit a complete defence until the docs as ordered have been supplied and leave it upto the court to either reorder the docs, proceed without or throw it out?

[pt2537]

Is there a way of doing it without having to send a N244 as that costs money - can we just send a letter to the court informing them that Link have ignored the order and we cannot resubmit a complete defence until the docs as ordered have been supplied and leave it upto the court to either reorder the docs, proceed without or throw it out?

sadly if you want to make sure then a N244 is how to proceed.

 

Of course you will get the costs back at the hearing unless you lose

[pt2537]

are you entitled to a fee remission?

[someone_else]

No my mum isn't entitled to a fee remission as her Widows Pension pushes her over the boundary and its not one of the benefits according to the form that is excluded from her income.

 

I take it sending a normal letter leaves it upto the judge/courts to decide whether to take any notice of it.

 

The judge has given us until the 16 Feb to resubmit a defence, we can always send a letter off to the court and if we don't hear anything resubmit our defence stating without the docs we cannot see whether there claim is valid or not - which is what we are still trying to find out is whether link have a valid claim or not and where they picked the amount owed from.

 

Is it worth giving the court a call to inform them that no docs have been recieved or will they not do anything over the phone?

[someone_else]

I've decided not to send a letter re-requesting the docs, as from the previous court forms it takes the court about a month or so to process the documents, instead I'll add it to our defence.

 

Am I right in thinking that the only infomation the court has is whats included in the Particulars of Claim and on the Allocation Questionarrie?

 

One thing I'm still confused about is the Notice of Assignment - does this have to be sent by the original creditor (if it just needs to come from a DCA, whats stopping anyone from randomly claiming to have bought peoples debts?) I've had a look around but cannot seem to find anything for certain, has anyone got a link or the name of the law that applies?

 

Also how do I know which PoC to respond to, on the blue court form from Northamption they state:

 

"The Claimant claims all sums due upon the termination of an Agreement made with the Defendant in writing and dated 16/08/2005.

The Agreement was terminated by the Creditor after the Defendant had failed to comply with the terms of the Agreement and the default noticed served upon them. The Agreement has been legally assigned to the Claimant subsequent to termination."

But in the incomplete pile of documents they sent this

 

Which is the one that the court will be going off?

[DocH]

Am I right in thinking that the only infomation the court has is whats included in the Particulars of Claim and on the Allocation Questionarrie?

 

Probably, but it might be worth ringing the court to make sure they have not received anything more from Link.

 

One thing I'm still confused about is the Notice of Assignment - does this have to be sent by the original creditor (if it just needs to come from a DCA, whats stopping anyone from randomly claiming to have bought peoples debts?) I've had a look around but cannot seem to find anything for certain, has anyone got a link or the name of the law that applies?

 

It is The Law of Property Act 1925(c20) which has this to say on the subject:

 

136. Legal assignments of things 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 thing 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 claim such debt or thing 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 such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

 

Also how do I know which PoC to respond to, on the blue court form from Northamption they state:

 

But in the incomplete pile of documents they sent this

 

Which is the one that the court will be going off?

 

You can only go by what is in the POC. Link would need to apply to the court to change the POC to that shown in the other document.

[someone_else]

It is The Law of Property Act 1925(c20) which has this to say on the subject:

 

136. Legal assignments of things 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 thing 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 claim such debt or thing 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 such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

 

Thanks, now to me Assignor means original creditor? Assigne being Link and Debtor being my mum.

 

We have no paperwork from ford stating they'd sold the debt to Link (they cannot say no-one does as my mum recently received a letter from bank of a defaulted/settled account saying they'd sold the account to another company)

 

I also take it without a letter permission from ford, link are in breach of the DPA, as no permission was given to Link to hold/process any of my mums details.

 

The PoC may not matter any more as a witness statement from Link arrived this morning, which I now need to look through - I take it the witness statement now overrides the PoC as the details of their claim?

[someone_else]

In their witness statement (that they took a week to bother to post to us and didn't bother to actualy write up until after the deadline imposed by the court)

 

1. says who he is and that their infomation comes from their written and computer records.

 

2. Now States an agreement was made with FCE Bank plc, but they haven't bothered to give a date of the agreement (I assume actually lying on this form would get them into trouble) - they have attached the same page1 and 2 of an agreement dated 17/08/05.

 

3. State default notice was served on 11/07/06

 

4. state vehicle was recovered and statement of account now included.

 

5. state they have been legally assigned the account.

 

6. state notice of assignment served 1st may 2008

 

Comments:

 

1. Not sure if its worth asking how we know these are true documents, as they look the same to the originals (also the fact they are full of errors means they are more than likely true copies)

 

2. They have not bothered to put a date here, they have been claiming all along that the agreement was made on the 16/08/05, even though the contract is dated the 17/08/05. The contract they have provided is still only the first two pages. The CCA clearly states any referenced documents need to be produced to enforce - pages 3 and 4 are referenced as is a "Pre-Contract Infomation" document.

 

Has anyone got a court case reference to back up the fact that the full agreement is required, the fact that they have ignored the courts order to provide a full agreement dated 16/08/05, should hopefully stand in our favour that the judge wants the whole agreement.

 

3. The default notice is now invalid, as they have finally sent a breakdown of payments - showing that on the 11/07/06 £1,405.90 had been paid not the £1,305.90 as claimed on the default notice, they have also missed off a £25 payment made in Dec05, making the actual amount paid as £1,430.90. There's also the fact that the date of the agreement on the default notice incorrectly states 16/08/05

 

4. The statment of the account is just a list of payments received (missing the £25 paid in Dec).

They list a settlement rebate, but not how it was calculated, can we ask them to provide a calculation of how this was calculated?

They have also just listed a value obtained for the car, with no infomation regarding how this was calculated.

They have also added £170 reposession charge - thats disputed as my mum offered to return the car and they refused to accept it back.

They have also added a litigation charge of £102 and the court fee.

 

I've also just digged out a letter from ford that differes by £10 - they state the balance owed at time of repo was £10 less than the statement provided and have credited a £10 lower rebate???

 

5. They have provided no proof from ford that it was sold to them.

 

6. Sale of debt letter states they bought the debt from a different company than the company listed in the witness statement, considering Ford Credit Europe Plc stopped being called that back in 1998 according to companieshouse, is it not illegal for them to continue to trade under that name. All the paperwork from ford have them using the name FCE Bank plc, putting the wrong name of the sale of debt letter would seem to invalidate it to me?

 

They haven't included anything about wanting interest, so I take it that photocopied PoC doesn't apply.

 

Having read through several threads on here, there is possibly two documents that they have failed to supply:

 

- Document stating the agreement is terminated (or does the default notice count?)

- Letter from Link saying pay or we'll go to court, (they may have provided one in the past but haven't included any evidence of it when we requested docs from them)

 

Are these required documents?

[someone_else]

I've got our defence in three parts at the moment, a couple of questions first:

 

- If handing the defence in in person at the court, does this have to be done by my mum or is anyone (me) able to hand the documents in at the court - the defence has to be in by 4pm monday, my mum doesnt work friday afternoons so she could take it down tomorrow, but if I'm able to hand it in that buys us until monday.

 

- In our defence are we able to reference the documents attached to the claimants witness statement, without having to include copies of them aswell?

 

 

This is what I have as a summary (need to add references to docs I'll be including and some quotes of the law):

 

1. The Claimant has failed to produce the following documents in support of their claim:

(i)Either a partial or complete copy of the agreement dated 16th August 2005 referred to in the particulars of claim.

(ii)A valid default notice.

(iii)The Termination notice referred to in the particulars of claim.

(iv)Notice of assignment from FCE Bank plc assigning the debt to Link Financial.

Until the above documents are provided the alleged debt is unenforceable.

2. Claimant has failed to provide satisfactory proof for the amount claimed.

3. When a request for documentation was sent to the Claimant they replied under Section 77/78 of the Consumer Credit Act with a cover letter stating they had provided all documents in relation to the above agreement.

The Consumer Credit Act 1974 Section 172 states:

172. — (1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

 

The claimants cover letter dated the 29th August 2008 is thus binding and their failure to include:

(i)A copy of the agreement dated 16th August 2005.

(ii)A complete copy of the agreement including any document referred to in it

(iii)The Termination notice referred to in the particulars of claim.

(iv)Notice of assignment from FCE Bank plc assigning the debt to Link Financial.

Is admission that they do not hold the above documents and are unable to enforce the agreement.

The claimants’ failure to produce these documents even when ordered by the court leads me to the opinion that they do not hold them as evidenced by their binding statement above and I request that the claimants claim be struck out.

If the claimant does somehow produce these documents at a later date, they will be committing an offence under Section 172 of The Consumer Credit Act 1974.

This is in response to their witness statement:

I dispute the following claims in the claimants witness statement dated the 4th February 2009.

 

Paragraph 2: copy of agreement “SRT-1” is not dated 16th August 2005 as claimed in particulars of claim. Document provided is incomplete missing three pages referenced within:

(i)Page 3 of 4

(ii) Page 4 of 4

(iii) “Pre-Contract Infomation”

 

Until a complete agreement including the above pages and dated 16th August 2005 is produced the alleged debt is unenforceable under the Consumer Credit Act 1974 Section 77/78.

 

Paragraph 3: Whilst a default notice was produced, this default notice marked “SRT-2” is invalid due to inaccuracies within it:

(i)States date of agreement was 16th August 2005, claimant has failed to produce an agreement dated the 16th August 2005, the partial agreement marked “SRT-1” is dated 17th August 2005.

(ii) The arrears owed of £870.60 are incorrect.

(iii)The total amount paid of £1305.90 is incorrect.

 

The statement of the account provided by the claimant in their witness statement (marked SRT-3) shows as of the 11th July 2006 £1,405.90 had been paid according to their records.

 

The default notice also fails to record a payment of £25 made via Direct Debit on the 12th December 2005.

 

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Paragraph 4: The copy statement is not sufficient to prove amount claimed:

(i)fails to record the payment of £25 made via Direct Debit on the 12th December 2005.

(ii)Fails to detail how the Settlement Rebate of £564.07 was calculated.

(iii)Fails to detail how the Sale Proceeds amount was calculated.

(iv)Fails to detail how the Costs of Reposession was calculated.

(v)Fails to detail how the Litigation Charge was calculated.

(vi)Cost of Repossession charge disputed my offer to return the car voluntarily was rejected.

 

Balance on the 09/08/06 and Settlement Rebate contradict previous paperwork received from FCE Bank plc. Letter dated 7th November 2006 shows a different existing balance (£8,941.30) and rebate (£554.07) as of that date.

 

To correctly assess the amount claimed by the claimant I require a detailed breakdown how these transactions were applied to the balance, specifically to address the failure to record the £25 payment made on the 12th December 2005 and how the break down on the 9th August 2006 differs to paperwork sent by FCE Bank plc.

 

Paragraph 5: I have received no notification of Assignment from FCE Bank plc stating Link Financial or any other company have legally been assigned this account.

 

The Law of Property Act 1925(c20) states:

 

136. Legal assignments of things 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 thing 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 claim such debt or thing 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 such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

 

Paragraph 6: Notice of Assignment attached to the Claimants Witness Statement (“SRT-4”) is not valid:

(i)It is not from the Assignor who in this case is FCE Bank plc.

(ii)States that they purchased the debt from a company called Ford Credit Europe Plc.

I took out no agreement with a company called Ford Credit Europe Plc.

 

And this is a statement of facts leading to where we are now:

 

 

1.An Hire Purchase Agreement was made on the 17th August 2005 with FCE Bank plc for them to provide credit for a Ford Fiesta.

 

2.I fell behind with payments due to my bank charging me obscene amounts of bank charges.

 

3.In July 2006 an arrangement was made to pay FCE Bank plc £100 each week for three months to clear the arrears, via standing order/online bill payment after FCE Bank plc provided me with the Sort Code and Account Number to make payments to.

 

4.After the first payment was made on the 07th July 2006, which was received by FCE Bank plc on the 11th July 2006 they issued the default notice (Document SRT-2 as referenced in the claimants witness statement).

 

5.After the second £100 payment was made on the 14th July 2006, FCE Bank plc stated their intention to reposs the vehicle, after phoning FCE Bank plc I was informed that they had not made any agreement and unless the arrears they stated were paid immediately over the phone they would reposs the vehicle, they refused to accept any offer of payment even after I informed them that my job as a mobile social care worker depended upon me having a car. The only advise I was offered was to pay the full amount owing immediately or to sell the car to raise the funds – which is in direct violation of the agreement.

 

6.After they refused any offer of payment that I could afford, I offered to return the car which they refused.

 

7.On the 1st August 2006 when they turned up unannounced to take the car, when speaking over the phone to an advisor I was advised even if I made payment there and then they would still be taking the car as the payment would not clear until the next day.

 

8.On the 7th November 2006 FCE Bank plc stated they had sold the car at auction.

 

9.Sometime later I received a letter from the Manchester Private Detective Agency informing me that they had been employed by FCE Bank plc to track down the car that they had already reposed.

 

10.After informing the Manchester Private Detective Agency that FCE Bank plc had taken the car, they sent me a budget plan to complete and return, that I did offering a payment of £50 per month. No response to this offer was received from FCE Bank plc.

 

11.In late 2007 early 2008 I started to receive letters and postcards from Link Financial demanding money, the postcard that was sent was vague and open to the public – in direct contravention of OFT guidelines.

 

12.I have received nothing in written from FCE Bank plc stating they have passed the account onto a third party or Link Financial specifically.

 

13.Requests for proof from Link Financial were finally responded in May 2008 with the Sale of Debt letter (a copy of which is attached to the Claimants Witness Statement Document SRT-4) which shows that they purchased the debt from a company called Ford Credit Europe plc. I never made any agreement with a company called Ford Credit Europe plc.

 

14.The next information I received was the Court Claim initiated by the Claimant Link Financial Ltd on the 21st July 2008.

 

15.In response to this claim, I sent via first class recorded delivery on the 25th July 2008 a letter requesting all documents they hold in this matter. The claimant received this request on the 28th July 2008 according to the Royal Mail’s online tracking system (Royal Mail REF: x).

 

16.On the 1st September 2008 the claimant posted copies of all the documents in relation to this agreement.

 

17.In the bundle of documents provided the claimant failed to provide:

(a)A copy of the agreement that they state was made in writing and dated the 16th August 2005.

(b)The agreement that they did provide was only a partial agreement.

©Notice of Assignment.

(d)Breakdown of how they calculated the amount claimed.

 

18.On the 5th January the court ordered that the Claimant serve on the Defendant the above documents by 4pm on the 2nd February 2009.

 

19.The Claimant failed to provide the ordered documents by the deadline set by the court.

 

20.However on the 11th February 2009 I received a copy of the Claimants Witness Statement that included the following documents ordered by the court:

(a)A copy of the Default Notice referred to in the Particulars of the Claim.

(b)A detailed breakdown of the amount claimed.

 

21.The Claimant as of the XX February 2009 has still failed to provide the following documents as ordered by the Court:

(a)A complete copy of the agreement dated 16th August 2005 referred to in the Particulars of claim.

(b)A copy of the notice of termination referred to in the Particulars of claim.

©A copy of any notice of assignment previously served on the Defendant.

 

 

Any comments or advice would be good, thanks in advance.

[someone_else]

Quick question, I am just trying to link in all the revelant legistation for the defence, and I remember reading in a thread here (not that I can find it now) that for them to claim charge/costs (repo charge, ligitation cost) they need to declare how much they want to charge in the contract, if not you can challenge it and they need to prove those costs, can anyone point out the revelant law or one of the threads where its mentioned, thanks.

[DocH]

Litigation costs are governed by court rules.

 

If you are referring to administration charges and collection charges, these are covered by the OFT's Debt Collection Guidance document. The relevant section is:

 

Charging for debt collection

 

2.9 Charges should not be levied unfairly.

 

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express contractual or other legal provision.

 

b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision.

 

c. not giving an indication in credit agreements of the amount of any charges payable in default.

 

d. applying unreasonable charges, for example, charges not based on actual and necessary costs.

 

e. applying charges which are disproportionate to the main debt.

All companies who hold a credit licence issued by the OFT are bound to these guidelines.

Edited February 15, 2009 by DocH

[someone_else]

The partial contract they have given states auction fees will be charged at the rates which are current, they also state legal costs have to be paid on a full indemnity basis.

 

so no actual value in contract means they fall short of ©

can get try and get them to prove cost under (d)

 

Are they allowed to add the litigation £102 litigation charge - they have called that a charge not a fee, which leads me to think its a random figure like bank charges rather than a real amount.

 

The fees make up ~8% of the total, don't think that counts as disproportionate.

[DocH]

so no actual value in contract means they fall short of ©

 

Yes.

 

can get try and get them to prove cost under (d)

 

Yes, put them to strict proof of costs involved - an item by item breakdown.

 

Are they allowed to add the litigation £102 litigation charge - they have called that a charge not a fee, which leads me to think its a random figure like bank charges rather than a real amount.

 

Not sure on this point. But £100 is about in the ball park for solicitors fees for a Small Claims Track case, which are awarded at the discretion of the judge I believe. You will need to get this confirmed by someone who has more knowledge of court costs.

 

The fees make up ~8% of the total, don't think that counts as disproportionate.

 

I would agree - seems reasonable.

[someone_else]

When you are attaching documents to the defence, do you have to do a cover letter for each document, or can you include one cover letter listing the documents.

 

Something like:

COURT STUFF HEADING

 

These are the following documents referred to in the defence of .....

 

1 - something.

2 - something else

3 - third document

[someone_else]

Quick update, things not going particularly well, Link have still failed to provide the documents ordered by the court back in January, but the court managed to lose our defence (well they are saying they never recieved it, despite me hand delivering it and seeing the girl stamp it and type something into the computer) after it was handed in on time, and entered judgement in default.

 

After contacting the court they said to email a copy of the defence and a cover letter and they'd send it to the judge, not sure whether the judge read the defence or not but after much chasing he eventually said we had to apply to set aside the judgment, whilst granting Link a Charging Order on the House.

 

So we filled in the N224(?) form asking the judge to set aside the judgement as Link failed to provide the ordered documents and a defense was submitted to the court, but lost by them, with a copy of said defence included with the form.

 

We now have a hearing on the 2 June where the judge will hear our application.

 

So now the questions:

 

Does anyone know what this hearing is going to be like, is it going to be a case of the judge asking Link if they sent the documents and asking for proof.

 

Regarding the loss of the defence is this something the Judge will understand or will he/she be like the Banks where they refuse to acknowledge mistakes are made or stuff is lost and if its not in the computer it never existed. I can narrow down the time I submitted the defence to within an hour and describe my actions within the building but don't have a reciept or know the name of the person on the counter, they have CCTV but whether they keep the recordings or allow access is another question.

 

Hopefully this will be a simple hearing and one of three things could happen:

 

1. Judge orders them to provide docs and we go back to where we were in Feb.

 

2. Judge finds in our favour, throws out the entire case as Link have had enough time to produce said documents.

 

3. Judge doesn't believe we submitted a defence and doesn't care that Link didn't provide the docs and finds in their favour.

 

Do we need to bring copies of cases and the CCA74 mentioned in the defence, incase the Judge allows the claimant to raise questions about the defence - the defence includes a history of the account, complaint about claimants failure to provide the ordered docs, and then takes apart the documents that they did supply in their Witness Statement. Or will the hearing just be concerned with did they provide the documents and did we provide a defence.

 

Regarding the Charging Order, I have just been reading up on it and according to the notes on the HMCS website we need to write to Link and the Court objecting at least 7 days before the Charging Order Hearing (That's in July) - yet the Interim Order and the cover letter from Link make no mention of that, Link mention if you object turn up to the hearing, I thought companies weren't allowed to use peoples lack of legal knowledge against them?

 

The form also says they have to inform any other creditors, yet they have only listed the mortgage company, do they need to list unsecured creditors?

 

The form also says they have to inform anyone else who has an interest in the property, as I currently live in the house also and actually pay the mortgage how do I know if I have a right of occupation?

[someone_else]

Well we recieved an interesting letter from Link this morning: (gist of the letter below)

 

Without Prejudice Save as to Costs

We write in relation to your recent application

 

You application is merely an attempt to frustrate and can only hope to delay.

 

This paragraph is quoted:

 

"If this claim were to be defeated on the technicaltities you allege, they will simply be remedied, a fresh default notice would be served upon you, which will remain upon your credit file for six years and on non-compliance witht the notice a further claim will be raised manually in your local County Court with the associated costs of preperation of such, thereafter judgement will be sough [their typo] and enforced in the event payment is not made accordingly."

 

In all likelihood we will end up back at the same point. The point of this correspondence is to put forward offer of settlement to preserve Court Time and costs.

 

We propose the following order by consent.

 

- Judgement be set aside.

- Claim stayed whilst defendant pays £x a month, in default calim judgement.

- No order to costs.

---

 

Okay so what does that letter mean, to me it seems they have admitted they don't have case and are threatening to send it back through the courts until they get paid.

 

The Without Prejudice Save as to Costs bit does that mean we cannot submit this letter to the court?

 

Are they saying sorry we lied to the court but pay up anyway otherwise we will continue to submit claims.

 

I also thought they couldn't re-issue a default notice (though the default notice issue is secondary to the fact they don't have the aggrement) - I take it I'm going to have to read the tale of a dodgy DN thread as it looks like their defence is going to be to re-issue the default notice.

 

If they want to amend their PoC do they need permisson from us and the Court?

 

If they resubmit the claim to our local court they'll need to attach all the docs to the PoC won't they?

 

Is it best to just ignore this letter and let the courts deal with them or respond rejecting their offer or offering a counteroffer.

 

It's nice that they are saying we are wasting the courts time when they brought a claim without bothering to check the facts.

 

If they do bring this up in the hearing, then we can counter with the fact that somewhere down the line they'd need to produce the documents.

[someone_else]

I'm in the process of writing out some arguements and counter-arguements to points that Link may raise.

 

If Link say they posted the docs on time (unlikely), we can ask for proof of postage and copy of what they sent? (we can already prove that the witness statement wasn't recieved in time). (I assume they cannot turn around and say sorry we sent the only copy in the post and it mysteriously got lost).

 

A slight problem we have is if they say they don't need to produce the agreement - can we just argue the fact that the judge decided it was important enough to request, or if we get a different judge can they decide it's not important? Which leaves us arguing case law and the CCA1974.

 

We can easily take apart their statement, as it isn't detailed, and is inaccurate.

 

Which leaves us asking the judge to strike out their claim under CPR3.4 or to order them to produce the docs.

 

We can also show why court didn't get a defence, and why the application was delayed until May.

 

We can also show a good case for the defence - Link refused to provide docs, what they have is incomplete and default notice and NoA are invalid.

 

I've got the regs and caselaw to back up the issues with the default notice if need be, but cannot seem to find anything that states that the NoA must be accurate - The Property of Law Act doesn't seem to set out anything apart from the letter coming from the Assignor?

 

Can anyone point me to anything that states they must be exact or is it just assumed that they are?

 

Can anyone spot anything I've missed, as I've got a week now to coach my mum on our arguements.

[someone_else]

Ok I've found this post by Docman that has some more infomation regarding Assignment:

 

The following are poins taken from 'Goode on Consumer Credit' in relation to NOAs:

20. Notice in writing.

In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person[1] from whom the assignor would have been entitled to claim the debt or the chose or thing in action[2].

 

The notice need not be formal,[3] and need not be written with the intention that it should perform the function of giving notice[4]; but it must be given even though the debtor cannot read[5].

 

It has been held that if the date of the assignment is wrongly stated the notice is ineffectual[6], though if no date is given at all the notice may be good[7] . It may also be ineffectual if it does not state the amount of the debt correctly.[8]

 

[1] Amalgamated General Finance Co Ltd v CE Golding & Co Ltd [1964] 2 Lloyd's Rep 163 (no legal assignment because no notice to underwriters); Shaw v Applegate [1978] 1 All ER 123, [1977] 1 WLR 970, CA (equitable assignment of benefit of negative covenant became legal when notice given to covenantor). It seems that notice should be served on every person who would be a necessary party to a claim on the debt: see Josselson v Borst [1938] 1 KB 723 at 736, [1937] 3 All ER 722 at 727–728, CA, per Greer LJ, and at 740 and 732 per Slessor LJ. Notice should, accordingly, be given to all trustees: see para 53 post. In relation to a cause of action in tort see also Perry v Tendring District Council [1985] 1 EGLR 260; RL Polk & Co (Great Britain) Ltd v Edward Hill & Partners [1988] 1 EGLR 142

 

[2] Law of Property Act 1925 s 136(1). An assignment will be good in equity as between assignor and assignee without notice: Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 ChD 128, CA. See further para 42 post. The suspensory character of the proviso in Gatoil Anstalt v Omennial Ltd [1980] 2 Lloyd's Rep 489 meant that the notice of assignment did not satisfy the requirements of the Law of Property Act 1925 s 136 (as amended).

 

[3] Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177

 

[4] 5 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA

 

[5] Hockley and Papworth v Goldstein (1920) 90 LJKB 111 (where the debtor's inability to read was well known to all the parties, and clear oral notice was given but was ineffective).

 

[6] Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839; WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA. It is not so in the case of an equitable assignment: Whittingstall v King (1882) 46 LT 520

 

[7]Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

 

[8] WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA, obiter per Denning LJ

 

Has anyone got a link to the WF Harrison & Co Ltd v Burke [1956] 2 All ER 169 case?

[someone_else]

Does anyone know how to find a copy of the Harrions case, I cannot seem to find a copy of it online anywhere, bailii.org doesn't have a copy, I've found plently of references to it but not the actual case - I found a case that lost because the deed was produced which meant the errors in the NoA didn't matter.

 

I did find something on the insolvency.gov.uk website:

31.9.29 Legal assignment of a right of action

Where the official receiver as liquidator or trustee considers it desirable, following legal advice, to execute a legal assignment of a right of action, the power to do so is under section 136(1) of the Law of Property Act 1925. Under these provisions:-

....

 

 

the assignment must be in writing and signed personally by the assignor (ie the official receiver as liquidator acting on behalf of the company or as trustee). Legal advice should always be sought as to the form and content of the assignment.

 

 

express notice in writing of the assignment must be given by the official receiver to the other party or parties to the action which is to be or has been commenced. Again, legal advice should always be sought as to the content and service of the notice. The assignment only operates under s136 LPA 1925 from the date of the notice, that is, the date on which it is received by or on behalf of the person to whom it is addressed. S196 of the 1925 Act contains provisions on deemed service of notice. If s196 is relied on great care must be taken to follow strictly the relevant provisions. If the date of the assignment is wrongly stated the notice is ineffectual (Stanley v English Fibres Industries [1899] 68 LJ QB 839), though if no date at all is given then notice may be good (Van Lynn Developments Limited v Pelias Construction Co [1969] 1 QB 607). The 1925 Act does not prescribe any limit of time within which the notice must be given.

 

 

the assignment will be subject to existing equities (ie the debtor party may raise against the assignee any defence, set-off or counterclaim which he could have had if sued by the assignor, provided that the matter on which the defence or counter claim is based arose before notice of the assignment was received).

Do the same things still apply to a CCA rather than Insolvency?

 

It needs to be signed by the assignor

 

s196 (recorded del.) doesn't matter as s196 states it doesn't apply if produce in court.

 

The cases again only care about the date (without the full cases I don't know whether the arguement is the date must be correct if stated or the entire document must be correct).

 

For the last bit does that mean we can sue/counter-sue Link for the loss of the car if the default notice is found to be invalid. (getting Link to admit the NoA is invalid maybe in their best interests ;-)) As a invalid DN would have been served before the NoA.

 

Would any of this be able to be quoted to the judge as it is from an official .gov.uk site?

[remus]

rory32

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Re: TBI Financial Services

A DOA is a legal deed which assigns the debt to a third party and is signed and witnessed and includes details of the debt.

 

A NOA is just a notification to the debtor that the debt has been sold. However a NOA should be sent to the debtor before the DCA pursues the debtor for the debt.

 

With regards to notice of assignments from DCA's.

If the notice includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419

 

As Rory has referred to it, he might have some idea, I have always found him very helpful and knowledgeable

[someone_else]

Unfortantley it won't let me send him a message and he hasn't be active for over a month, thanks for the help though.