Link Financial -ford credit return of goods order - lost

[emandcole]

Olympic, the fact is you informed us that "Received letter from LR dated 28/1/10 stating "Account has been assigned to FCE Bank plc who have subsequently re-assigned Link Financial Ltd to recover any outstanding debt due".

 

It is LR who have informed you of this so you are entitled to accept it as 'the truth'. LR and FCE may well be completely linked but the fact that there are two trading names suggests that the two are also completely different organisations and that's the important bit that got me thinking.

 

As Vint and Jasper have stated assignments are nothing to do with the CCA, this is all about the transfer of rights relating to an item/debt and this falls within the remit of the Law of Property act. Companies House list the following:

 

LAND ROVER

BANBURY ROAD

GAYDON

WARWICK

WARWICKSHIRE

CV35 0RR

Company No. 04019301

 

FCE BANK PLC

CENTRAL OFFICE

EAGLE WAY

BRENTWOOD

ESSEX

CM13 3AR

Company No. 00772784

 

The above shows that the two are registered with different numbers and as such the transfer between LR and FCE should have been done with a Deed of Assignment present. FCE have flogged it to Sink who are shown below as the final and entirely seperate party to this.

 

LINK FINANCIAL LIMITED

CAMELFORD HOUSE

89 ALBERT EMBANKMENT

LONDON

SE1 7TP

Company No. 03504939

 

You should therefore have two Deeds of Assignment, not just one, which as we’ve seen they cannot yet provide. This is fatal to their claim so you need to make a big song and dance about it and expose them from the outset.

 

As Jasper has pointed out Sink have begun action in their own name. To do this they need to have acquired all rights under an absolute assignment. It seems that somewhere along the line people have got sloppy and as Sink are up for sloppy seconds (sorry couldn't help have a dig ) you might just have sunk them on this.

[olympic1805]

Hi Emandcole,

Thanks for that I presumed that as they were maybe the same company, they did not have to inform me, anyhow like i said I hae never received any other notice of DOA.

So what course do I take now ?

thanks again everyone for the ongoing help

[emandcole]

As this is is not small claims CPR should apply fully so the requests for info should be fully heeded by Sink. I would write back to them thanking them for the letter and info but ask once more for a copy of the Deed of Assignment between LR and FCE, and the Deed between FCE and them.

 

Don't ring them, all in writing. Ask them politely once more for the Deed of Assignment reminding them of their duties under CPR. Perhaps worth stepping it up a little by including the fact that you are entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

That should grab their attention. Send recorded and print the proof of receipt as always. If this gets to court and they start to whinge you can show the court you made every effort to gain sight of this vital document and it was Sink who didn't provide it. Won't go down well I can assure you.

 

If you still have no joy inform the court of your difficulties, good to build up a record of good communication with them in situations like this.

[olympic1805]

Thanks Emandcole,

Going to word a letter to Link now requesting the DOA, Will they also have the copy DOA between LR and FCE ??

[emandcole]

To be honest that's not your problem .

 

However, by notifying them that you are expecting to see the Deed between them and FCE and also expect that there will be a Deed between FCE and LR you're giving them an opportunity to re-examine their own position early on.

 

I doubt very much they'll have a compliant Deed between them and FCE and would state pretty confidently that no such Deed ever existed between FCE and LR. All in all the assignment is probably flawed and with the case law you now have to hit them with I don't see how they can get round this...unless of course the assignment was correct...which I doubt very much!

 

Also, something the DCAs don't want people to know is that bought debt can be challenged under the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. Believe it's along the lines of why should a DCA be enriched on a debt that has actually ben paid off as a tax write-off (under written), something like that...more research needed but not got the time right now .

 

Basically if the DCA buys a debt for 20p in the £1 why should they be allowed to make so much out of it now?

 

Also, I believe there is no provision to allow an unsecured debt to be changed into a secured debt (unless this has been written into the original contract). The fact that most DCAs try to secure debts on your home (charging orders etc) is overlooked somehow. Believe the DCAs use section 136 of the Law of Property Act 1925 to justify this but in reality the CCA 1974 (as amended) should override it.

 

This is something I mean to look more into as this is potentially highly explosive for the debt purchasing industry, in effect it could wipe them out very quickly.

 

INVITATION FOR OTHER CAGGERS TO LOOK INTO IF THEY'RE BORED!

 

Another point to consider is that some assignments are done in a very dodgy way to avoid paying Corporation Taxes. Really not familair with this in any depth but it would be interesting to learn how any assignments were routed and to see if the right taxes had been paid. Perhaps ignore these last bits for now, or until I or some others have something more substantial to go on, just the ramblings of a curious mind .

[olympic1805]

Hiya, can someone look at this drafted I took from various posts, and see if this is okay to send off to Link ??

 

Thanks

 

"Further to your letter dated 5th May 2010, received 10th May 2010.

I would like to thanks you for the information, but once again ask that you provide me with

copy of the Deed Of Assignment between Land Rover and FCE Bank, and also the

Deed of Assignment between FCE and yourselves. Together with all other documents

requested.

I wish to remind you that you have a duty under CPR 31.14 to supply me with ALL documents

relating to your claim, and as I am entitled, in any event, to view the documents of Assignment as

a matter of Law, (Van Lynn Developments V Pelias Construction Co Ltd 1968 (3) all ER 824.

If you are unable to comply with this request and believe that you will never be able to comply

with this request, you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail

to agree to an extension of time for the filing of my defence, I will make an application to the

court for an order that the proceedings be struck out or stayed for non-compliance and a

summary costs order.

I do hope this will not be neccessary and look forward to hearing from you. "

 

If okay will send guaranteed delivery tomorrow, so they will get it Friday.

many thanks

[olympic1805]

Hi Emandcole,

 

Got ur post through as I had typed mine, so shall I not send this letter ??

What about going through the route you previously said about asking the courts to look at their case documents ??

[emandcole]

You have a few options at this stage, all geared around securing the documents they infer they have. Before Allocation Questionnaires are sent out you can use the CPR to request sight of documents. So...if they haven't provided and all you can submit is an embarrassed defence the court will see that defence and should then respond by ordering the claimant to provide the docs you need.

 

Either way, at some point and by hook or by crook you'll get sight of the documents (if they exist) as the court recognises you need them. If they choose to ignore the CPR this will have implications on their credibility. If I recall your case hasn't been allocated a track yet but given the amount it's likely to go to fast track so there will be risk of costs to either side if they lose.

 

Currently we're working on the hope and presumption that the assignment has been a flawed process so currently the right thing to do, in my opinion, is to persist with the intention of defending. Send the CPR letter once you've spell checked it and make sure it reads correctly. This really is important as judges have little patience for badly constructed statements and letters, this will reflect on you as a person so it needs to be sharp!

 

Sorry, can't recall just now if you've submitted any kind of defence (been thread jumping again) so if you have the court will act and insist the claimant provides, if you haven't you can then report in your subsequent defence that on such and such dates you issued various CPR requests for info and the claimant has not provided what you needed. Either way until you get what you've asked for they cannot really progress too far.

 

The hearing I mentioned earlier is an option if they fail to produce anything and you want to up the pressure. You'd request a hearing asking for the claimant to bring all of the documentation you need with them and between you, them and the judge you can learn a great deal. It costs about £75.00 in total but can be worth its weight in gold. For now I'd sit tight and issue the letters, as this is likely to be fast track they really can't ignore a CPR request and really should respond before you have to submit any form of defence.

[olympic1805]

Hi emandcole,

so is my letter worded okay to send to link ??

 

Was reading through some more posts, could I not isue a N244 ?? or is this not relevant to my case ?

 

Sorry Emandcole, reading then trying to respond, No defence has been submitted by me yet !

[emandcole]

Ok, stick with the letter you have if you've already issued the 31.14 for sight of everything disclosed in their particulars of claim. Send recorded once more and print off proof of delivery. If you have nothing back with two to three days to go before you need to submit something post on here.

[olympic1805]

Still NO response from Link !!! I wonder if the postman will deliver tomorrow ??

[emandcole]

Morning. I doubt they'll respond to be honest, the info you've asked them for is unlikely to exist so you're making yourself pretty hard to deal with .

 

Sink will probably focus on hammering the old lady with a statute barred debt of £60 as she's canon fodder...much more typical of their parasitic style .

 

Keep an eye on those court dates though ok

[olympic1805]

Morning. I doubt they'll respond to be honest, the info you've asked them for is unlikely to exist so you're making yourself pretty hard to deal with .

 

Sink will probably focus on hammering the old lady with a statute barred debt of £60 as she's canon fodder...much more typical of their parasitic style .

 

Keep an eye on those court dates though ok

 

Hi Emandcole,

Date of Service was 21/4/10, so that makes it 28 days today, should I be putting in an embarrassed defence today ?? (rang the court they said I can fax my defence over, but a couple of days late is okay)

Obviously Link are not going to send anything !

 

Between 21-28 days is a reasonable time;

a solicitor would give them 28 days.

 

Please note that, you will be unable to submit your defence until such time as they comply fully.

 

If they fail to comply, you can then use CPR 31.15 to gain sight of said documents;

they must comply with CPR 31.15 within 7 days of receipt of same.

 

In the meantime, you can only submit the 'Embarassed Defence'.

 

Hi AC,

Wondering do you have a template for submitting an "embarrassed Defence", has been 28 days today from Date of Service, and Link have failed to respond in after CPR being sent twice.

Obviously they have no DOA and are not going to respond.

Thanks

[emandcole]

If they have not provided you with the documents then don't enter an embarrassed defence, instead you'll submit to the court that as they have failed to provide the documents they rely on in support of their claim you're in no position to provide any form of response.

 

Can you re-cap for us what they have sent? Ignore anything you have already acquired from other sources, just list the documentation Sink have provided in response to any letters you've sent them. It is for them to provide copies, not for you to excuse this by obtaining the documents via other means.

[olympic1805]

Hi Emandcole,

What do I say/or do to the courts ??

Recap:

12/5/10 Sent Link 2nd request CPR31.14 - no reply

7/5/10(envelope date) Received from Link their internal complaint form

7/5/10(envelope date) Received from Link copy of HPA in responsen to my first CPR 31.14

26/4/10 Sent first CPR 31.14

15/4/10 (letter date) Link informing me of litigation charge of £100.00 they are adding to my account.

22/3/10 (letter date) Link sent LBA

4/3/10 (letter date) Link sent CCA request response

 

Is this okay ??

 

Hiya, anyone know what I should be doing next, cant submit defence, as not had the info back from Link, and as the 28 days are now up, panicing a bit as to what to do ???

thanks

[emandcole]

What date does the court need your response Olympic?

[olympic1805]

Hi Emandcole,

Just spoke to Courts Office, as long as a "Basic Defence" is in by today or tomorrow, she said that will be fine.

thanks

[emandcole]

You got me worried there .

 

Ok, have copied over a slightly heavy response for you to amend and issue. Heavy as it goes into some detail that some may argue is not needed at this stage.

 

However, given the fact that Link generally pray on the easiest cases to generate quick sums and results this response will give them an early taste of what to expect from you in terms of difficulty, eg you won't be one of the ones at the back of the herd who is easy to pick off.

 

Amend carefully, make sure each and every point you keep is correct, re-number at the end so it reads properly and finally spell check it all. What you send now will be a little window into how they can expect this matter to proceed, if they get a badly composed scrawl with numerous mistakes in it the judge will quickly get fed up and Link will presume they've bagged themselves a donut .

 

Chase the court after and get confirmation they've had it.

 

In the INSERT County Court

Claim number INSERT NUMBER

 

 

Between

INSERT NAME OF CLAIMANT - Claimant

 

and

 

INSERT YOUR NAME - Defendant

 

 

 

 

Response to Claimant

 

 

 

1. I INSERT NAME of INSERT FULL ADDRESS WITHOUT POST CODE am the defendant in this action and make the following statement as my defence to the claim made by INSERT CLAIMANT.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am unable to plead to the particulars as they fail to comply with civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the original document under CPR request which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

 

 

5. The claimant has failed to provide a true copy of any regulated agreement and any applicable Terms and Conditions. The defendant also requires copies of any varied Terms and Conditions in the event of any unilateral variation in such terms throughout the life of any agreement. The claimant should also declare without delay any intention to rely upon a reconstituted agreement.

 

In the event that a reconstitution is relied upon because the original application has been lost or deliberately destroyed and if the court, all other matters aside, accepts the submission that a photocopy of an application is admissable I would expect the claimant to produce the following as a responsible keeper of data with reference to the Civil Evidence Act 1995.

 

 

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents.

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s).

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

6. The claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer Credit Act 1974. The claimant should also provide proof of postage given the importance of this legal document. 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).

 

 

7. The claimant has failed to produce any applicable Termination Notice.

 

8. The claimant has failed to produce a comprehensive set of statements detailing the history of any debt. As such I have been prevented from auditing such statements and am in no position to comment on their accuracy or otherwise.

 

9. The claimant has failed to supply any Notice of Assignment, a copy of which the defendant would request in order to ascertain their legal standing along with proof of posting under Section 196 of the Law of Property Act 1925. The defendant would note that such a notice should have been issued by the original creditor and should accurately describe the assignment (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

10. The claimant has failed to supply a copy of the true Deed of Assignment or to make any effort to allow inspection of the same. Consequently, I require the claimant produces the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925.

 

 

It is further averred that I am entitled, in any event, to view the Deed of Assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). The claimant should therefore make immediate preperations to disclose this document and make it available for inspection.

 

11. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularize the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

 

12. I respectfully ask the court to use its case management powers to order the claimant to disclose all of the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.

 

I am happy to travel to a reasonable location given by the claimant in order to examine such documentation at my own cost. It is anticipated that the defendant will then have an opportunity to determine the credibility and right of this action and to plead accordingly.

 

 

13. Alternatively, I respectfully request a stay in proceedings with a deadline for their production. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

14. In the meantime I further ask the court to consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that very little documentation in support of the claim has been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly. Clearly the defendant is having his right to defend needlessly prejudiced.

 

 

15. In addition, if the claimant cannot produce an original credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly.

 

16. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

 

17. The defendant will consider any counter claim and provide details of this with permission from the court in my amended and fully particularised defence once the claimant has produced the currently missing documentation they intend to rely upon.

 

18. For purposes of total clarity the defendant is unable to respond to this claim and awaits a full response from the claimant.

 

Statement of Truth

 

I, INSERT NAME, believe the above statement to be true and factual.

 

 

 

 

 

Signed

 

 

 

 

Date – INSERT.

[olympic1805]

Thanks Emandcole, getting on with it now, and will fax over to the courts as soon as. (they did say i could fax it over). How long before I hear from the courts in response, do you think, do they also have set time limits ?

[emandcole]

Really depends how busy they are.

Northampton for example were listing cases for hearing around three to four months later (as of last month) so depends where you are etc.

 

Important thing is you've responded as required, Sink will know you're not gonna be pushed about and you can use the time to do further reading etc.

 

[debbbbsy]

Hi,

As you are faxing it over, make sure you keep a record of it being sent. When I faxed mine over to Northampton, I had a contact name to send it too, I phoned her later that day, & she confirmed she had recieved it.

 

Good Luck

Debs

[vint1954]

Thanks Emandcole, getting on with it now, and will fax over to the courts as soon as. (they did say i could fax it over). How long before I hear from the courts in response, do you think, do they also have set time limits ?

They will acknowledeg your first defence in writing, sending a copy to the claimant. They then give the claimant 28 days to respond, then claim is stayed if the do not respond.

[olympic1805]

Hi all,

silly me !! forgot as its in my husbands name had to wait until he came back from work last night to sign, anyhow all signed and delivered in person to the courts today !!! so here goes lets see what Link do next !!

Again thanks to everyone for their help, I know its not over yet, but its good knowing we have the support of CAG

[olympic1805]

Hi, just a quick update, we have our court date in few weeks, and still not heard anything from the courts after putting in my defence ??? I know when I handed in the courts said about4-6 weeks before i receive an allocation questionaire, but its getting close now ||||

[olympic1805]

Hi,

I have today received copy of Witness Statement, from Link which is to be used as evidence.. They have enclosed a) witness statement from a Mr Stephen Ross Thomas (Link Financial) b) Copy HPA c) copy of DN (which is an old one dated 10/10/08 d) Copy of letter from Link 'Sale of your debt'.

Obviously this means Link are wanting to have their day in court, which is set for 21/7/10..... Panic is setttling in again .....