Assignation and Intimation

[LostAtSea]

Hi

I have a question I hope someone can help me with.

 

 

I am trying to find the relevant law that deals with Assignation and Intimation of assignation with regards to debt in Scotland.

 

 

I don't want to go into too much detail at this point

but the deeds of assignment ( 2 of them OC to DCA1 then DCA1 to DCA2) both claim to have absolutely assigned the alleged debt .

 

 

Governing Law is England and Wales and states the courts of which shall have jurisdiction.

 

 

Nether comply with the Law of Property act 1925 section 136 in that both failed to notify me in the prescribed manner and, as I understand it, under English law the most recent assignees would be unable to bring this to court solely in there own name as equitable assignment had taken place not Absolute assignment.

 

 

My legal adviser Professor Google (its the best I can do under legal aid in Edinburgh) has shown me lots of documents that would suggest that the laws of assignation are different under Scottish law

but I can't pin down the relevant law.

 

 

If someone can point the way I'd be forever grateful.

[LOVETHEBANKS]

Subbing

[joepottsie]

Transmission of Moveable Property (Scotland) Act 1862

 

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1862/cukpga_18620085_en_1

 

If the jurisdiction is England and Wales then surely the legislation would be English...

[LostAtSea]

That's brilliant, thank you. I'm exploring the jurisdiction situation now but it seem to be increasingly murky waters and beyond my meagre talents.

[joepottsie]

Probably the best bet you have is going to CAB who would perhaps have the answer and if not would be able to refer you to someone who could help.

 

It's difficult given the lack of details, but it would be a start.

 

If you have a credit agreement or contract which states that it is under the law of England and/or Wales; they would not have jurisdiction to take diligence to a Scottish court - unless they have transferred the debt. There is a way to do so, but it's expensive and not guaranteed.

 

Again it's all subjective and theoretical given that we don't know the circumstances - but CAB would be a good place to start.

[LostAtSea]

Hi again

 

I have a problem.

I am in the middle of a summary cause action with a DCA.

 

 

The reason I was asking about assignation is because in their inventory of productions there are 2 deeds of assignment from the Original creditor to DCA1 and from DCA1 to DCA2, DCA2 being the pursuers.

 

 

All 3 are based in England and both deeds state the alleged debt was assigned absolutely under the laws of England and Wales and that the courts of those country's have jurisdiction.

 

 

I know that Scottish courts allow for assignation to have taken place in a different country but the assignment is flawed.

 

 

Because the original creditor did not notify me of assignment,

a requirement of the Law of Property act 1925 section 136,

absolute assignment did not take place,

only equitable assignment took place.

As a result ownership of the debt remains with the original creditor.

 

 

The same thing happened with the second assignment and in any case DCA1 could not assign something they did not own to begin with.

 

 

My problem is how do I challenge assignment made under the laws of England and Wales in a Scottish Court?

 

 

I really need to make this stick if I can because all the paperwork I had on this matter has long since been lost and the paperwork provided by the pursuers is solid enough even though it contains some inaccuracies.

 

 

I would really appreciate any ideas on how to proceed.

 

I am currently defending a summary cause action in Scotland

(please read on before moving to Debt in Scotland)

 

The alleged debt was assigned under the laws of England and Wales and the deed states the courts of those counties have jurisdiction.

 

I wish to challenge the deeds claim that the debt was assigned absolutely as the original creditor did not provide me with a notice of assignment as required by the Law of Property act 1925 section 136.

 

I believe, therefore, only equitable assignment occurred and the pursuers do not own the alleged debt and are not entitled to pursue the matter through the courts on their own.

 

The problem I face is that I believe the Scottish courts lack diligence to decide on this mater and I'm led to believe that a Sheriff is likely to just ignore my claim as being trivial.

 

Can I challenge the assignment through the county courts and, if so, could someone give me an idea of how to word the relevant paperwork?

 

I believe that if I can lodge a claim I will be able to ask for a sist in my case until the mater is resolved.

 

Any help would be greatly appreciated.

 

Anyone help?

[IdaInFife]

sorry but it isnlt very clear on what you want to challange

 

are you saying because the DCA sent you the assignment you beleive that absolute assignment did not take place?

[LostAtSea]

Hi Ida,

I want to challenge the pursuers right to pursue this matter through the courts on the grounds that they do not own the debt.

 

 

Both deeds state that the alleged debt was assigned absolutely under the laws of England and Wales and that the courts of those countries have jurisdiction.

 

 

Both assignments failed to follow the requirements of the Law of Property act 1925 section 136 in that notice was not served in the manner stated.

 

 

As a result I believe the original creditor still owns the alleged debt and the pursuer can not bring the matter to court in their name only, they can only do so in conjunction with the owner.

 

 

How do I get this across to the Sheriff?

I tried asking and was told to put it in writing but I'm not the best communicator in the world and I don't want to mess this up.

[Linian]

Hi

 

Have you got a copy of the Deed of Assignment?

[nicklea]

The relevant scottish act is the Transmission of Moveable Property (Scotland) Act 1862.

 

 

My understanding of this is that the assignment in Scotland must be hand delivered by a public notary or, if it's by post, you must reply in writing acknowledging receipt of it for it to be valid.

 

Below is something I put together for someone some time ago for England:-

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

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—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served,

if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. 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)

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).