Defence required for Claim form - Barclaycard / CL Finance / Howard Cohen

[consumeredge]

Hi sev

 

its been a long time coming, looking forward to reading it, having viewed it yourself is the transcript accurrate or has the judge amended anything

[sev67]

Ok transcript uploaded. Nothing material appears to have been changed CE.

Edited August 5, 2011 by sev67

[cerberusalert]

I've unapproved the pdf. Can you edit all personal info and identifiers and post it up again?

[sev67]

Re-scanned again, hope this is better.

transcript.pdf

Edited August 5, 2011 by sev67

[DonkeyB]

 

 

[consumeredge]

Hi sev

 

The judge needs to start looking and thoroughly understand what he is actually reading:

 

4. (1) Any absolute assignment by writing under the hand of the assignor

Q1. Is the Notice of Assignment exhibited by the Claimant written by the Assignor? No.

When the Law of Property Act was passed by parliament in 1936 it would be reasonable to assume many assignments were hand written, hence the wording "written under the hand" the assignment would include the signature of the assignor, because again in my opinion it would be reasonable to assume, without the assignors signature, any Notice of Assignment without the Assignors signature would be deemed worthless

 

My understanding is that this is not a technical argument, it is the law. That law to me is very clear and precise. Seems ironic this law was passed 65 years ago and yet the judiciary still cannot understand it.

65 years on many institutions in equal size to Barclaycard recognise and apply the Law of Property Act sending notice to debtors the account has been sold to a third party, notably HSBC, the wording is simplistic with dates and amounts as owing on the said date of sale, the only difference is that in this modern age the letter is typed and electronically signed by the head of collections.

 

The Claimant and the Claimants solicitor know this to be fact, I can provide you with copies for the court of appeal Notice of Assignment to Debtors from HSBC during 2007 and Notice of "purchase of account" (which CL Finance Limited term NoA) from CL Finance Limited for the same account, Howard Cohen & Co then pursued the debtor for monies outstanding on the account.

 

CL Finance limited unlawfully issued a summons against the defendant, awarded judgement in default the claim was set aside on application.

 

If Barclaycard did not pursue the debt that is their choice neither did they send you Notice of Assignment.

 

Q2. Why should Barclaycard enjoy privilege and be exempt from this law?

 

Q3. What is the exact wording on the Claimants witness statement, does it include a paragraph and wording to the effect of "The assignment was lawfully executed pursuant to Section 136 of the Law of Property Act"?

 

Theirs also this, Section 82 Consumer Credit Act 1974 a new directive issued, which reflects the new European Union Directive assignment of rights, however, without exact dates it is not possible to offer any opinion to you. As you will see it is critical to the Claimants witness statement, that being did they state Section 136 of the Law of Property Act or Section 82 CCA applies

 

16. ASSIGNMENT OF RIGHTS

 

16.1 Where any rights of a creditor under a consumer credit agreement (for example the right to be repaid the money) are sold or transferred to a third party, notice of that assignment must be given to the borrower as soon as reasonably possible, except in the circumstances described below. This requirement applies to all regulated consumer credit agreements other than agreements secured on land. This requirement is in new section 82A of the CCA43.

 

 

16.2 It is the responsibility of the assignee (the creditor acquiring the rights) to ensure that notice is given. However, he does not have to give notice himself, but can agree with the assignor (the creditor assigning the rights) that the assignor will give notice instead, depending on what is more sensible in the circumstances. It is important, however, that notice is given as soon as reasonably possible and in a way that is clearly understandable by the borrower.

 

 

16.3 Notice does not have to be given where arrangements for servicing the credit are unchanged as far as the borrower is concerned. For example, if Creditor A sells his rights under a credit agreement to Creditor B but Creditor A still collects the borrower’s repayments in the same way and is the only point of contact for the borrower on matters regarding the agreement, notice does not have to be given.

 

 

16.4 Where notice has not been given, and arrangements for servicing the credit do subsequently change, the borrower must be informed of the assignment on or before the date that change happens. Again, this must be readily comprehensible to the borrower.

 

 

16.5 The definition of "creditor" in section 189 of the CCA applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party."

 

　

[sev67]

Excuse the time reflecting over this.

The NoA exhibited is definately not written by assignor but is this point strong enough on its own to justify an appeal especially as it seems to be disputed here on CAG.

Here is the exact wording on the witness statement which as you highlight makes no mention of Section 136.

"6. By a deed of assignment, 21 Oct08, Barclaycard assigned the account absolutely to CL. There is a now exhibited hereto marked "XX4" Deed of Assignment. Notice of such assignment being sent to the Defendant on 7Nov08. There is a now exhibited hereto marked "XX5" Notice of Assignement." As per the witness statement attached to my post #74 on this thread.

 

However, looking at this particular paragraph again from the witness statement I am drawn to what surely is the main argument which is the debt has not been properly assigned (para2 of transcript) and no evidence has been provided to prove that it has been properly assigned other than the witness statement, yet the witness statement incorrectly calls the exhibit the Deed of Assignment but it is the Sale Agreement as acknowledged by the judge. The witness does not offer any evidence that they have ever seen the Deed of Assignment, only that they have seen the sale agreement. The witness writes "By a deed of assignement, 21 Oct 08, Barclaycard assigned the account absolutely to CL", but provides no verification of this at all, yet the judge reads this as the witness from her records confirms the deed was given. It was the wrong exhibit so how can the judge rely on the witness statement that the deed was absolute.

 

From robinway - The Court should only receive evidence recognisable as such, that is oral testimony, or an affidavit or verified witness statement exhibiting the document and verifying it as true.

 

I'm struggling here to get this across. How do I translate this into an appeal. This has to be the key, as this is where the judge was wrong, very definately wrong. My first attempt was this but I think I need to break this down into separate points and separate reference to law. Any help greatly appreciated.

 

1. It is averred that the District Judge was wrong to accept the Witness Statement para 6 dated 14 July 2009 as proof that an absolute assignment took place on the 21 October 2008. Under CPR 3.4 (2) © the Respondent did not comply with a Court Order, dated order made 19 March 2009 and order drawn 25 March 2009, to send to the Defendant (3) A Copy of the Deed of Assignment. What they did supply was an Account Sale Agreement dated 28 March 2008 which the District Judge accepted would make the assignment equitable. The witness refers to this document as XX4 purporting to be the absolute assignment dated 21 October 2008 so the Witness is confused and therefore their Witness Statement para 6 dated 14 July 2009 cannot be relied as proof an absolute assignment exists, or in fact that it took place at all. This is an appeal under CPR 52.11(3) (a).

 

Also - how long do I have? I'm already out of time. If I could afford a barrister I would but cannot. Original judgement was 28Jun. The claimant phoned me other day to ask for payment on the judgement but all I would say is I'm appealing so they said they would make a note.

Edited August 10, 2011 by sev67
missed chunk out

[cab1ne]

"wow" what a carry on this is,

 

i do wish you well in this fiasco and hope you achieve the result you are aiming for,

 

just to throw you another spanner into the works, that may be of some use. section 74 "the law of property act 1925" and all its ammendmants (Regulatory Reform (Execution of Deeds and Documents) Order 2005 (2005 No 1906).

 

with regard to the deed of assignment, after reading it several times i think the deed itself might be "toilet paper",

 

wether it be a COMPANY, CORPORATION, INDIVIDUAL or by POWER OF ATTOURNEY, any instrument or document that is to be a deed, MUST be done so by so signing it in the presence of a witness who attests the signature”.

 

An attestation clause is frequently found in legal documents that must be witnessed if they are to be valid, for example, a will or a deed. It states that the instrument has been completed in the manner required by law in the presence of the witness who places his or her signature in the designated space.

this is what i can make of it, maybe someone more qualified could clarify this a bit more clearer

 

dave

[sev67]

Hey thats a really good point, thanks. I'll have a proper look at this later and see how to work it into the appeal.

Is anyone else able to offer any advice on my post #107 above please.

[sev67]

Looking through papers again, I have a letter from Barclaycard dated 15Apr09 in response to my SAR along with all the information requested. The account was supposed to be absolutely assigned on 21Oct08 to CL therefore the response should have come from CL and not Barcalcard shouldn't it? Unless of course the assignment was still only classed as equitable after 21Oct08. The judge says in para 3. "No-one has produced any indication since that date, that there has been any action by Barclaycard in realtion to this debt..."

 

Is the response to SAR action by Barclaycard or not?

Is this a valid point that can be classed as new evidence for the appeal?

[caro]

The original creditor would still have information to comply with your SAR request as you were dealing with them in the first place, so that's fine. You can also SAR the DCA to see what information they have from when they took over the debt.

[sev67]

CL failed to comply with a Court Order Direction in 2009 to provide the deed of assignment, instead they provided the sale agreement. The witness statement called the sale agreement the deed of assignment which clearly it is not - are there any points of law that deal with the fact that CL did not comply with the court order which I can use in the appeal?

[tosh1]

subbing