Link Financial......Yikes!!!

[emandcole]

Hi Shelbs, have just seen Link off on a claim so know how they conduct themselves. From the gist of what you've already added it seems Link are perhaps hoping for an easy claim...we'll make sure they get far from that.

 

Perhaps do as AC has directed and read my experience and if you have it in writing that Link directed you to return court paperwork to them instead of the court complain to Trading Standards as I did...it was upheld and it went to the Licensing Section of the OFT. If Link are still playing their old games a complaint like yours would be to your advantage given their background so far.

[emandcole]

Hi, would be very happy to help give Sink another headache .

 

Shelbs, the request is good but perhaps be clearer as to what part of the assignment you want to see. There is both the notice of assignment that the creditor should have sent you (have you SAR'd them) in addition to the actual legal document, the Deed of Assignment (more on that below) so make sure you get hold of both along with proof of posting.

 

The letter Sink may have sent you telling you they own the debt does not count as a valid Notice of Assignment, this should come from the assigning party to you directly. The letter Sink may have sent you is no more than a courtesy letter and is of no value in terms of assignment expectations.

 

important to bear in mind that Sink do not have a great track record of paying such requests too much attention! In your favour of course to some extent but only marginally as courts do not appear to attach too much importance to pre-hearing games.

 

Sink may argue on a technicality that what you're after might not have been included in their P of C and that you're only entitled to see what they've actually put in that P of C so if that's the case, if they reply, don't concern yourself too much with it all and stay focused on the bigger picture.

 

In the meantime of course you cannot provide a defence to them so if they do not provide you have more interesting options open to you and that's when all of this will really start to develop.

 

Will contribute more when it comes to the nitty gritty but perhaps worth asking right now for a copy of the Deed of Assignment as the mere notice that they are now the 'owners' of the account does not in itself create an assignment. If you ask for it now and they don't provide it you'll be able to demand they produce it a later stage as a matter of urgency given the fact that they may have already ignored your request to see it.

 

The following is from my defence and counterclaim and you can use this in your own defence if and when the time comes.

 

Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am 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).

Edited May 4, 2010 by emandcole

[emandcole]

Hi all

 

Please help!!!

 

Guess what, I have not received anything from Link & need to submit a defence to day. Do you think I need to go with an embarassed as have received no info.

 

All help very very gratefully received

 

Have you prepared for this eventuality...do you have an embarrassed defence ready to submit?

[emandcole]

Ok, first off you just need to have the dates to hand of anything you've done.

 

EG

 

SAR DATE Sent

CPR Requests DATE Sent

CCA Request etc etc.

 

Once you have these you can then state on your defence what you've tried to do to obtain the info in order to respond to the claim. Can you post these first and then we'll add a few bits here and there.

 

You'll be asking for permission to amend the defence once the claimant responds fully so for now it doesn't need to be hugely detailed, just needs to explain what you've done so far and why you cannot respond to their claim.

 

More important that you get something submitted or you'll risk judgement by default. Will await your posting...

[emandcole]

Bear with me, putting it together now. Will need you to fill in the blanks as such, be about 15 minutes or so .

[emandcole]

In the INSERT County Court

Claim number INSERT NUMBER

 

 

Between

Link Financial Ltd - Claimant

 

and

 

INSERT YOUR NAME - Defendant

 

 

 

Defence

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 Link Financial Ltd.

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 embarrassed at pleading 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 embarrassed.

Statement of Truth

 

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

 

Signed

Date – 12th May, 2010.

 

 

 

 

-----------------------------------------------------------------------------------------------

 

 

 

 

Ok, the above will do you. You need to read through and amend the INSERT bits accordingly. Run a spell check too, haven't had time. Insert the extra info you have and state what you've done to date in order to try and get the info you need. Put this up at the start, (you will need to change the numbering to account for this).

 

 

 

This will explain to the court that you've:

 

 

 

1) Attempted to examine the claim against you and have used the 'tools' available for you to use such as the CPR, CCA,SAR etc.

 

 

 

2) That the claimant has not bothered to elaborate their claim against you resulting in you being unable to plead accurately.

 

 

3) That you now need the court to get involved - hopefully the court will now order the claimant to provide you with all that you've asked for. You cannot enter any kind of real response until the claimant has provided you with the documentation you need.

 

 

 

In the mean time read up where you can - the more you know the better ok? If you can tip my scales (if you haven't already ) that would be great, I'm really close to getting another green blob and I like green blobs .

 

 

 

Remember also that your court office is likely to close at 16:00 so don't get caught out and get there too late!!!

 

 

All the best.

[emandcole]

Wow emandcole...that is something else.

 

Is there something I could add to let the court know that they have not even given an agreement number or the original creditor from whom they bought the debt, on the claim form.

 

Or is that not necesary at this stage?

 

Thank you so much

 

Given the fact they've not provided anything (I believe) this doesn't make any significant difference. This would also be resolved with the production of the documents you've requested, which the court should now demand the claimant provides so I wouldn't bother for now.

 

As for the online submittal great, would consider posting a paper copy as a secondary as well which doesn't need to be done today unless you're passing a post office. Online is just fine, I just like to be thorough that's all .

[emandcole]

Hi emandcole,

 

Got a bit of a problem, for online submission, it must not exceed 120 lines & no matter what I do it is at least 50 over. Any ideas?

 

Great, typical court system eh?

 

Perhaps cut out the details relating to the Civil Evidence Act, the Documents In Court bit.

 

Also, get rid of 14, 15 and 16 as needed. The court won't throw the claim out as Link appear to have some kind of hold over the courts.

 

Despite being told by a judge in the past that they (the judges in general) have grown sick and tired of Link starting claim after claim, frequently without documentation and rarely without good cause from the outset, the court appears reluctant to actually throw these claims out as a warning to Link and others that their paperwork should be in order from the off.

 

So, remove those bits. That should be enough I think?

[emandcole]

Very welcome, thanks for the scales tip...nearly there . Keep us posted on anything you get.

[emandcole]

 

PS my sol'r at the Legal action group is looking for exactly this kind of evidence against LF.

 

I have the letter from TS here if that's any help? Quite simply this would prove that Link have been at this before and have already been subject to OFT intervention. It appears Link have ignored both TS and the OFT and clearly need to be exposed for the cheating bathtubs they are.

[emandcole]

Hi Emandcole,

Can you post it up as I need a bit of cheering up right now.

If I print it of and show to the judge do you think it will help my case as not addressed to me?

Flaminscoty.

 

Will do