Another Sigma claim for partial monies (M&S)

[Pumpkinhead]

Hi All

 

My situation is very similar to others who have recently received Claim Forms from HL Legal on behalf of Sigma who are claiming "part of monies due....." The POC is exactly the same as the others I've seen in the last few weeks on here and is asking for £299.99 plus court fee and solicitor's costs with a total of £364.99.

 

This relates to an M&S Credit Card which was upgraded from a Storecard and I'm pretty sure they are on dodgy ground with this following the recent case involving a Harrods card.

 

I've completed the Acknowledgement of Service on line and stated that I intend to defend the entire claim. Although I have a copy of the original "application form" on which this claim is based (they refer to it as an agreement) I will be sending them a CPR31.14 request and advise everyone else in this situation to do the same. I will also be advising HL in the same letter that:

 

(a) the account was in dispute and so should not have been assigned

(b) that the "agreement" they refer to is unenforceable in that it does not contain the prescribed terms

© that Sigma have no legal right to action as the debt was not assigned correctly

 

During the days when M&S were handling it they also sent at least two Default Notices which were faulty in that they did not allow sufficient time for redress.

 

I agree with others on here that this is Sigma just shaking the box to see who will easily cough up £364. They've been sending out loads of these claims. I reckon they will back off once they see a defence will be or has been lodged and when they get my letter.

 

I was tempted to ring them and ask "without prejudice" of course for clarification of their intention behind claiming for only part of the monies due and enquire whether this meant that if their claim was paid that they would officially call it quits and write the rest off. However, I think this may be too risky.

[Pumpkinhead]

SkemDosser has noted on his thread on this same Sigma issue that he/she believes the assignment notices sent in this instance are invalid as they have not been sent by the OC but the assignee Sigma and that they should have been sent by recorded delivery and signed for. I thought it might help if we look at s135 of the Law of Property Act:

 

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—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

(2)This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

[F1(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F2£30,000].]

 

 

I've kept the envelope that mine arrived in and indeed it has Sigma's details included on it as part of the franking stamp however the letter from Sigma also INCLUDED a letter from M&S. I think a court would probably deem that the inclusion of the letter from M&S was sufficient to meet point 1 of s135.

 

I see s135 refers to assignment being given by means of "express notice in writing". I think the term "express" means here the same as it means in any other contract - just that it is specifically written down i.e. as opposed to implied or come about due to custom and practice.

 

I'm not sure where it is detailed in law that it is necessary for a notice of assignment to be sent by recorded delivery or signed for by the debtor. Of course if the OC does send the document in this manner they can easily prove the letter was sent and received which I understand. But with Default Notices for example it doesn't count for much if a debtor says "but I never received a DN" so long as the claimant supplies a copy. I do recall there is a piece of legislation which covers how to determine the date by which documents sent are deemed as served but can't remember what this is. Therefore I don't think we can gain much by stating the assignment notice is invalid other than using the clear fact that a debt should not be assigned when it is in dispute.

[the_shadow]

Pumpkinhead, I concur with your reasoning here, I believe they have complied with the LoP act and HAVE given you an effectual notice of assignment, however what was the wording of the letter, did M&S "pass on their rights" to Sigma or did they Sell the debt full lock stock and barrel to Sigma?

[the_shadow]

Oh and its certainly a new one on me claiming "part monies due", the CCA gives them a route to reclaim ALL their monies via court on defaulted accounts, as I understood it going back for 2nd bite would not be allowed under CPR however the acknowledgement that they are claiming only part monies is as I said a new one on me. If you default or dont reply you get a CCJ, how can they then take you to court for another go at the same debt and possibly gaining a 2nd CCJ on a single debt which is not allowed.

 

Mr Carter used to split his claims all the time and depending on the defendants circumstances the advice due to bad POCS being used was sometimes to admit, pay the money so no CCJ was marked and then tell him where to go for the rest if he ever came back. If you look for Bryan Carter claims specifically in the legal section you'll see a large amount of split claims

 

S.

[the_shadow]

Take a look at this thread, good advice and the claim was put in back in May

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?350237-Sigma-red-spv-Court-Claim

[Pumpkinhead]

Thanks shadow. I've read the thread above too. At the moment I don't feel like paying anything as I'm convinced the application/agreement is unenforceable. One part of me quite relishes the thought of a day in court and beating them whilst the other says paying £364 quid to get rid of this might be worth it. I shall think on a bit.

 

I have discovered that registered post is in fact required when assignment notices are served. This is referred to in the above thread you reference I think. Also in the same thread it raises the issue in the defence of the agreement being repudiated/unlawful rescission by he claimant as the dn was defective. I've used this argument in court and lost in the past. Rescission/Repudiation brings parties back to original footing I.e. the claimant gets his money back less anything the debtor has already repaid.

[Ford]

generally, there is no 'unlawful rescission' as such. a duff dn means that technically there can be no court enforcement, see Wilson, Harrison, Brandon cases for eg. in short, there seems to be 2 thoughts; cred can go away and issue/come back with a new/corrected dn, or a duff dn is final ie rescission for breach/unlawful termination.

Edited July 16, 2012 by Ford

[robcag]

I think following the issuing of a defective DN it all boils down to whether the creditor terminated the account or not. If the account was not terminated then it 'may' be possible to re-issue a compliant DN.

 

However, as has been argued in several threads, if the account is terminated - be it by a TN or by demanding sums not yet due - my view is to agree with those who use the logic that if an account has been terminated then there is nothing to issue a fresh DN on.

 

Rob

[the_shadow]

I think following the issuing of a defective DN it all boils down to whether the creditor terminated the account or not. If the account was not terminated then it 'may' be possible to re-issue a compliant DN.

 

However, as has been argued in several threads, if the account is terminated - be it by a TN or by demanding sums not yet due - my view is to agree with those who use the logic that if an account has been terminated then there is nothing to issue a fresh DN on.

 

Rob

 

My understanding is without a compliant DN the agreement cannot be properly terminated. This appears to be the view of recent judgments also and specifically the cases where unlawful Rescission/Repudiation were claimed.

 

S.

[Ford]

hence, the court cannot enforce. in that view, the claimant hasn't followed the correct termination procedure ie unlawful termination. q then is whether they can go away and come back with a new/corrected one? and, if so, what effect does that have on the defendant debtor. would the debtor then be entitled to compensation/remedy for creds 'mistake'? or is the duff dn final? which could be a remedy under 'mistake'? (in woodchester the argument that a notice need not be 'good in every single respect' was rejected by the CA re the strict requirements of the cca, except a 'de minimus' error in the amount specified (which makes sense as statute can't regulate the amount, but it can and does regulate the required form. an amount just needs to be 'specified' but s/b 'accurate'). harrison, brandon have followed that. but, as mentioned can they come back later as has been hinted there?)

(apologies, 'Wilson' in my post #7 above should be 'Woodchester')

Edited July 17, 2012 by Ford

[Pumpkinhead]

A quick update. I'm at the same stage as most others with Sigma in that I've had no replies to my CPR r31 requests or follow up letters, filed my defence end last week which is very similar to the rest on here. Nothing received from Sigma to date. Will post up when anything else happens or doesn't as the case may be.

[Abby25]

Hi,

 

just found your post. I'm in the same boat, and have a well documented MS thread on here ... which amongst other areas, discusses the unlawful transfer of a storecard to a credit card without the provision of a new agreement or terms and conditions ....

 

I also have a thread for the sigma part claim ......

 

in response to your question re the part claim, they advised me when I rang them, that the did this to save me fees, as if they claimed the whole amount there would be about 3k in court and legal fees, but if they just claim the £299, the fees are much lower ..... and wait for it ..... the sole reason for this was to be fair and helpful to the account holder .... I kid you not !!!

 

The also stated they had no knowledge of any dispute, as they don't get any complaint files with their purchased debts ..... when I asked in that case, what they had based their claim on, they couldn't answer me, and stated they would place a stay on the claim whilst they obtained the file from MS.

 

I CPR31'd them, to no avail, and submitted my defence 8 Aug - all quite up to now.

 

Hope this helps

 

Abs