help going to lose my home. dca

[pt2537]

ok, ive given my input, your strongest argument, is that the agreement is illegible and therefore there is a breach which means the judgment MUST be unsafe HHJ Waksman makes this clear in the authority i quoted from

 

ho hum,

 

the assignment issue which everyone and their dog is hanging hope upon is no where near as strong, its like the Iraqi army in the gulf war, talked a good fight but never won the day

 

A good brief would slaughter the assignment issue, but there can be no getting away from the fact that the agreement IS illegible , as a matter of common sense for a document to be legible it must be capable of being read ( HHJ Worster, Birmingham High Court, 25th January 2010)

[wish me well]

ok, ive given my input, your strongest argument, is that the agreement is illegible and therefore there is a breach which means the judgment MUST be unsafe HHJ Waksman makes this clear in the authority i quoted from

 

ho hum,

 

the assignment issue which everyone and their dog is hanging hope upon is no where near as strong, its like the Iraqi army in the gulf war, talked a good fight but never won the day

 

A good brief would slaughter the assignment issue, but there can be no getting away from the fact that the agreement IS illegible , as a matter of common sense for a document to be legible it must be capable of being read ( HHJ Worster, Birmingham High Court, 25th January 2010)

 

Both arguments have a possibilty of winning in my humble opinion but blackbear has not been given enough time to research any of the points only just raised on the day he goes to court.

 

The defence that has been suggested contains extremely strong arguments that cannot be brushed under the carpet by anyone, the law is the law.

 

Blackbear, its completely up to you which way to go with this, I sincerely hope that all goes well.

 

kindest wishes

 

wmw:)

[pt2537]

Sec 136 (1) LPA 1925 prescribed for a legal assignment.

 

If the assignment does not comply with sec 136 of the above mentioned statute, then the assignment is an equitable assignment only.

 

Kind Regards

 

The Mould

Head meet Desk

 

Oh my,

 

The law of property Act 1925 when read properly needs that a written notice of the assignemnt is given to the debtor

 

This is what Lord Denning said about notice of an assignment

 

I think the correct

interpretation of this statute was given by Atkin J in Denney, Gasquet, and Metcalfe v Conklin. It is quite plain from his judgment that no formal requirements are required for a notice of assignment. It is sufficient if itbrings ([1913] 3 KB at p 180):

"to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor."

It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain

that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the

future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so

as to be satisfied that it is valid, and that the assignee can give him a good discharge. But the notice itself is

good, even though it gives no date.

So, we have a notice that the debt has been assigned to arrow

 

its in writing

 

its been received

 

please tell me, what part of s136 has not been complied with?

 

just one final point, lets look at the registered post issue, the mischief this is intended to prevent is the debtor not being served with notice, so, it is my submission that, if the debtor did not have any notification as to the assignment then the creditor should provide proof of service however, where the notice is in the hand of the debtor i cannot see how one can argue that the failure to provide via recorded post is sufficient to defeat the assignment

 

It would produce an unfair result on the creditor if the only formality was that they couldnt prove posting when the debtor holds the document

Edited May 11, 2010 by pt2537
clarification

[The Mould]

Head meet Desk

 

Oh my,

 

The law of property Act 1925 when read properly needs that a written notice of the assignemnt is given to the debtor

 

This is what Lord Denning said about notice of an assignment

 

 

 

So, we have a notice that the debt has been assigned to arrow

 

its in writing

 

its been received

 

please tell me, what part of s136 has not been complied with?

 

 

iT HAS NOT BEEN SIGNED UNDER HAND BY THE ASSIGNOR,so it is not a legal assignment, it is only an equitable assignment, the performance of obligations has been sub-contracted out to Arrow Global,

 

Transfer of obligations has not taken place, this requires a novation which must br entered into by the existing parties to the agreement and the proposed new party.

 

MBNA are liable for the performance of his sub-contractor.

 

Kind Regards

 

The Mould

 

PS. The difference between you and me pt is that I fight for Justice, whereas, you fight only for gold.

[wish me well]

The OFT's views and guidance:

 

pointing in the direction of the guidance on sections 77/78/79 of the consumer credit act 1974

 

Section 2.29 LEGIBILITY OF ANY COPY

 

2.29 Any copy must be easily legible, as must any copy of notices of variation or statement of the terms of the agreement as varied. If the creditor or owner has a poor quality photocopy or microfiche, it should retype it or repopulate a template of the relevant agreement form with the details of the specific agreement, so that the copy sent can be easily read.

 

2.30 In these circumstances, it would be advisable to send a copy of the photocopy or microfiche, as well; although not strictly required, it may assist in avoiding disputes

 

So surly if the claimant sorta knows his stuff he could he would just quote the OFT's views. They are all in each others pockets!! nudge nudge wink wink!!

 

claimants solicitor: sorry judge I didnt know it was that bad, I will of course have it typed out for the defendant so it is easier to read

 

The tide is turning in favour of the claimants, a crap copy of the agreement is no longer a good enough arguement whether indeed there has been cases won on this before we need to attack with more bite!!

 

This justice system is screwed from the top to the bottom or bottom to the top, which ever way you want to look at it and all the **** inbetween.

Edited May 11, 2010 by wish me well

[The Mould]

The OFT's views and guidance:

 

pointing in the direction of the guidance on sections 77/78/79 of the consumer credit act 1974

 

Section 2.29 LEGIBILITY OF ANY COPY

 

2.29 Any copy must be easily legible, as must any copy of notices of variation or statement of the terms of the agreement as varied. If the creditor or owner has a poor quality photocopy or microfiche, it should retype it or repopulate a template of the relevant agreement form with the details of the specific agreement, so that the copy sent can be easily read.

 

2.30 In these circumstances, it would be advisable to send a copy of the photocopy or microfiche, as well; although not strictly required, it may assist in avoiding disputes

 

So surly if the claimant sorta knows his stuff he could he would just quote the OFT's views. They are all in each others pockets!! nudge nudge wink wink!!

 

claimants solicitor: sorry judge I didnt know it was that bad, I will of course have it typed out for the defendant so it is easier to read

 

The tide is turning in favour of the claimants, a crap copy of the agreement is no longer a good enough arguement whether indeed there has been cases won on this before we need to attack with more bit!!

 

This justice system is screwed from the top to the bottom!!

 

Yes that's right WMW, that's why it is important to have as much ammo in the cannon as possible, no doubt the agreement, the default notice and the non-legal assignment will all add up together and stop this injustice that has risen against blackbear and his family.

 

Kind Regards

 

The Mould

[mandyjayne]

subbin'!

[blackbear101]

ok been to court, did not go well realy

1, went to show the judge the cca, and

all the info. he said that he was here to just do the order for sale. did not want to look at the info

2 dca said that i did not make any payment, i told him i did and showed him my bank statement,

3 went to show him my defence, not interested as the ccj has alread been awarded.

4 showed the dca my defence, he tried to keep it but i said if its not going to be used you have no right to keep it.

5 the jude said all this info should of been used at the ccj stage, but we are not here for that.he said i have left it to long, he said i could of said somthing at the charge order stage. i said i did but you did not even looked at it. i told the judge that arrow did not sent me all the info, he was not bothered.

6 in the end he adjourn the order for sale i had to make payment of £40 for 3 months then will see if i keep the payments up, have to give dca my budget sheet for next time so that when we go to court again they will see if the amount that i am paying is fair. ( you bet your life the will increase it )

Edited May 11, 2010 by blackbear101

[wish me well]

Oh blackbear I am so sorry to hear that.

 

This justice system is screwed, they all line each others pockets, we are on the back foot from the off.

 

Well I do hope that the payment of £40 is acceptable to you, at least your home is safe for now.

 

I do wonder if you can appeal against anything, I dont know but if you can I am sure you will be pointed in the right direction.

 

Well blackbear, take very good care of yourself

 

Kindest wishes sent

 

WMW

[blackbear101]

just want to say thanks to everyone. at last i can sleep again ( for now)

they may of won the battle but the war is not over

[AndyOrch]

Hi Blackbear

 

The DJ was quite right to bypass your attempts to defence as you really should take one step back and set a side the CCJ,start the process from the beginning if you are up for it,and if successful will negate any further attempts of CO,s.

 

Regards

 

Andy

[bradfordlad]

For what its worth, I agree with Andy - the Judge didn't want to consider a "defence" at this stage.

 

The original CCJ is the stumbling block, and that needs addressing first & foremost - get that set-aside and the rest will fall with it.

 

But look at it this way - perhaps by going in armed with SOME facts, you put enough doubt in the judges mind as to give you another 3 months - plenty of time to get a decent appeal together - AS LONG AS YOU DON'T LEAVE IT TILL THE LAST MINUTE!!

 

For now - sleep easy tonight, and all the best to you

[wish me well]

Is there any points in law that would allow blackbear to send an application to the courts requested all of the details from start to finish on this case be looked at again?

 

APPLYING FOR PERMISSION TO APPEAL TO THE COURT OF APPEAL (CIVIL DIVISION )

http://www.hmcourts-service.gov.uk/courtfinder/forms/form206notes_0706.pdf

 

Could this be looked into? I know the cost is an issue and I am by no means suggesting what should be done either way but in the views of justice to be served on the mere mortal I think it may be a possibility.

 

I am not even sure that this form could be used in a case like this but its worth a shot for someone with more knowledge to advise.

 

Kindest wishes

 

WMW

[wish me well]

To set aside the CCJ is it an N244 application to the court?

 

Is there any time limits for a CCJ set aside?

 

I will try and find out for you blackbear and I'll come back with the info incase you choose to go down this route.

 

kindest wishes

 

WMW

[wish me well]

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

 

Ok, blackbear, have a jolly good scout through this

[wish me well]

I particularly like this section:

 

What happens to a judgment that is ‘set aside’?

 

If the judgment is set aside by the court, this means that the proceedings go back to the claim stage and any enforcement action is also cancelled. You have a new opportunity to fill in the reply to the claim form, make an offer of payment or put in any defence or counterclaim.

Having a judgment set aside does not wipe out the proceedings altogether but the details will be removed from the Register of Judgments, Orders and Fines until a new judgment is made.

 

This may work, what does anyone else think???

[AndyOrch]

As I stated in post 212 WMW set a side;)

 

Regards

 

Andy

[wish me well]

As I stated in post 212 WMW set a side;)

 

Regards

 

Andy

 

Indeed kind sir, indeed

 

Can blackbear do this then in your opinion?

 

I think so but I am a very lazy layperson

 

kindest wishes

 

WMW

[AndyOrch]

If there is a valid and genuine reason to Set a Side then yes.If Blackbear wishes to start this tenuous journey.Plenty of threads on here to read up on and see whats involved.

 

Regards

 

Andy

[blackbear101]

the judge did say it has taken to long, for the set aside, the proof is not the issue its the time to respond unless i have a very good reason,

 

question , why did i have a judgement by default in bradford

[wish me well]

N244 court form link:

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

 

court fees, do I have to pay them link:

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_web_0709.pdf

 

there you go, some more reading for you, if this is what you want to do.

 

[AndyOrch]

the judge did say it has taken to long, for the set aside, the proof is not the issue its the time to respond

 

 

When was the initial CCJ granted Blackbear?

 

Andy

[blackbear101]

the claimant obtained a judgment against the defendant on 29/02/2008

[wish me well]

Ok just because this particular judge thinks it to long ago, you want to set aside due to the facts that, pick from below:

 

The county court rules set out when you can apply to set aside a judgment. For example:

• an order was made against you in your absence, in certain circumstances;
  
• there may be an error in the judgment;
  
• you want to put in a defence and did not have the opportunity to do this;
  
• the proceedings did not follow the court rules.
  

The time limit for this is:

 

I dont know, I will try and find out but if anyone else knows, give us a heads up

[AndyOrch]

Valid reasons to have your judgements 'set aside' (to be used on n244 form)

 

 

Introduction

 

To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

I have listed quite a few valid reasons below.

 

1. Were you given 28 days notice in order to pay?
   
2. Were you living at the address when the summons and judgement took place?
   
3. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.
   
4. Did you receive the summons? They are not sent by recorded mail.
   
5. Maybe you were unable to attend court and defend yourself.
   
6. The judgement should not appear on the credit files if it was paid up within 28 days.
   
7. If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.
   
8. If you did not receive any notification of the judgement/s made against you, then you can appeal.
   
9. Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
   
10. Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?
    
11. It could have been that you were away from the time between the issue of the summons and entry of the judgement?
    
12. Did you receive the summons on time for you to apply to the court. You have 21 days to reply to the court. If the summons was 21 days late then the judgement would have already been taken out against you?
    
13. Did somebody use your name or address to obtain credit, which resulted in a County Court judgement without you knowing?
    

Lastly...

 

You can use any of the above reasons to have your judgements set aside.

Remember that no correspondence sent by the courts or the plaintiff is ever recorded. In the majority of cases County Court Judgements fail to comply with every detail.

This gives you the chance of having your judgement/s removed forever.

 

 

Regards

 

Andy