Another court case - hearing on the 24th August..HELP!

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Thanks for looking in PT. I'll have a look at the bulk centre rules. I think I understand where you are coming from on this. I need to check the POC & check whether as you say, it provide a concise statement of facts.

Thanks again.

[Mr Muffet]

Re: Another court case - hearing on the 24th August..HELP!

They are in need of a proof reader that's for sure.

They are constantly advising that the Defendant is to "stick proof of her allegations".. stick it where

[Horse_with_no_name]

Re: Another court case - hearing on the 24th August..HELP!

I find it strange that the attorney representing Santandar was also the attorney representing CL Finance, his being the only signatures on the document....

Also isnt there some ruling under the companies act that a director has to sign a legal sale document? Not my forte but I seem to remember Donkey and VJ were getting excited when looking at a deed on a HFO deed.


and wtf is "Salami Week" all about ;-)

S.

check out posts 96 - 101 on this thread to see VJ's comments. However be careful. VJ refers to section 36A of the Companies Act which no longer applies for deeds executed after 1st Oct 2009.

Under s47(1) of the Companies Act 2006 (in force 1st Oct 2009) a company can empower a person as its attorney to execute deeds on its behalf.

However s47(1) of the Companies Act 2006 (CA 2006) makes it clear that that a Company can only appoint an Attorney, by a valid Deed.


Proof of power of attorney - you could ask for this as per section 3, Power of Attorney Act 1971

To prove that a person has been given a power of attorney, they will need to either produce the original or else a certified copy of the original. Photocopying the original power of attorney and certifying that it is a true copy of the original makes a certified copy. Photocopying can include any other means of duplicating the original power of attorney.

Any copy must be certified as being a true and complete copy of the original - on each and every page.

That looks like they would need to provide a certified Deed of power of attorney for each company. Each deed would need to have been signed by a witness and dated.

To be honest I don't know how quickly Cohens could overcome this. They may get it wrong. The date the power of attorney was given, would obviously have to be before your alleged deed of assignment was executed, also if the Deed of Power of attorney lasted only for a certain time it might invalidate your Deed of assignment if the power of attorney expired before your assignment was executed.

Note: If either deed granting power of attorney was executed before 1st Oct 2009, then there is a chance Cohens could be caught out by the points in VJ's posts above, because s36A of the CA 2006 would then apply to any deed before that date.

Note: The deed of assignment may also be invalid under s1 (3)(a) of the Law of Property (Miscellaneous Provisions) Act 1989
which requries :-

[BEGIN QUOTE]

(3) An instrument is validly executed as a deed by an individual if, and only if—
(a) it is signed—
(i) by him in the presence of a witness who attests the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and

[END QUOTE]

I'm not sure if this latter Act applies to land only. What do others think ? The argument is that the individual attorney who executes a deed of assignment under s136 of the Law of Property Act 1925,must ensure that his signature is written in the presence of and attested by a witness...

[Horse_with_no_name]

Re: Another court case - hearing on the 24th August..HELP!

Also s74(3) of the Law of property Act 1925 states a Deed executed by an attorney must be witnessed :-

[BEGIN QUOTE]

(3)Where a person is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of a corporation sole or aggregate, he may as attorney execute the conveyance by signing the name of the corporation in the presence of at least one witness [F5who attests the signature], F6. . . and such execution shall take effect and be valid in like manner as if the corporation had executed the conveyance.


[END QUOTE]

Again - apologies if this applies to land only. I'm just trying to help.

[Horse_with_no_name]

Re: Another court case - hearing on the 24th August..HELP!

Heres a quote from practical law website on the Execution of deeds and documents pre 1st Oct 2009 and Post 1st Oct 2009. Apparently property means anything in action (that includes assignment of debts)

[BEGIN QUOTE]

A frequently asked question is whether the attorney should sign in his or her own name or the name of the donor of the power. Under sections 7(1) and 7(1A) of the Powers of Attorney Act 1971 it is possible for individuals to execute a deed in their own name or in the name of the donor. These sections allow an attorney to execute any instrument with his or her own signature and do any other thing which he or she has the donor's authority to do in his or her own name; those acts will be as effective as if done by the donor itself. The signature should be witnessed in accordance with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989.

Where the donor is a company, the attorney can execute a conveyance of property by signing the name of the corporation in the presence of one or more witnesses who attest the signature (section 74(3), Law of Property Act 1925). (For these purposes, "property" includes any thing in action and any interest in real or personal property. "Conveyance" includes a mortgage, charge, lease, assent or vesting declaration).

See also LR Practice Guide 08 - Execution of deeds (www.practicallaw.com/T3961), paragraph 10, for the Land Registry's requirements on execution by attorneys, including attorneys appointed under trustee powers and LR Practice Guide 09 - Powers of attorney and registered land (www.practicallaw.com/T3748). Note that the Land Registry suggests that the name of the witness should be stated in block capitals in the execution provisions.


[END QUOTE]

I guess it would be helpful to find an actual definition in the act for 'property' - which will confirm the above assertion.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

check out posts 96 - 101 on this thread to see VJ's comments. However be careful. VJ refers to section 36A of the Companies Act which no longer applies for deeds executed after 1st Oct 2009.

Under s47(1) of the Companies Act 2006 (in force 1st Oct 2009) a company can empower a person as its attorney to execute deeds on its behalf.

However s47(1) of the Companies Act 2006 (CA 2006) makes it clear that that a Company can only appoint an Attorney, by a valid Deed.


Proof of power of attorney - you could ask for this as per section 3, Power of Attorney Act 1971

To prove that a person has been given a power of attorney, they will need to either produce the original or else a certified copy of the original. Photocopying the original power of attorney and certifying that it is a true copy of the original makes a certified copy. Photocopying can include any other means of duplicating the original power of attorney.

Any copy must be certified as being a true and complete copy of the original - on each and every page.

That looks like they would need to provide a certified Deed of power of attorney for each company. Each deed would need to have been signed by a witness and dated.

To be honest I don't know how quickly Cohens could overcome this. They may get it wrong. The date the power of attorney was given, would obviously have to be before your alleged deed of assignment was executed, also if the Deed of Power of attorney lasted only for a certain time it might invalidate your Deed of assignment if the power of attorney expired before your assignment was executed.

Note: If either deed granting power of attorney was executed before 1st Oct 2009, then there is a chance Cohens could be caught out by the points in VJ's posts above, because s36A of the CA 2006 would then apply to any deed before that date.

Note: The deed of assignment may also be invalid under s1 (3)(a) of the Law of Property (Miscellaneous Provisions) Act 1989
which requries :-

[BEGIN QUOTE]

(3) An instrument is validly executed as a deed by an individual if, and only if—
(a) it is signed—
(i) by him in the presence of a witness who attests the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and

[END QUOTE]

I'm not sure if this latter Act applies to land only. What do others think ? The argument is that the individual attorney who executes a deed of assignment under s136 of the Law of Property Act 1925,must ensure that his signature is written in the presence of and attested by a witness...

Also s74(3) of the Law of property Act 1925 states a Deed executed by an attorney must be witnessed :-

[BEGIN QUOTE]

(3)Where a person is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of a corporation sole or aggregate, he may as attorney execute the conveyance by signing the name of the corporation in the presence of at least one witness [F5who attests the signature], F6. . . and such execution shall take effect and be valid in like manner as if the corporation had executed the conveyance.


[END QUOTE]

Again - apologies if this applies to land only. I'm just trying to help.

Heres a quote from practical law website on the Execution of deeds and documents pre 1st Oct 2009 and Post 1st Oct 2009. Apparently property means anything in action (that includes assignment of debts)

[BEGIN QUOTE]

A frequently asked question is whether the attorney should sign in his or her own name or the name of the donor of the power. Under sections 7(1) and 7(1A) of the Powers of Attorney Act 1971 it is possible for individuals to execute a deed in their own name or in the name of the donor. These sections allow an attorney to execute any instrument with his or her own signature and do any other thing which he or she has the donor's authority to do in his or her own name; those acts will be as effective as if done by the donor itself. The signature should be witnessed in accordance with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989.

Where the donor is a company, the attorney can execute a conveyance of property by signing the name of the corporation in the presence of one or more witnesses who attest the signature (section 74(3), Law of Property Act 1925). (For these purposes, "property" includes any thing in action and any interest in real or personal property. "Conveyance" includes a mortgage, charge, lease, assent or vesting declaration).

See also LR Practice Guide 08 - Execution of deeds (www.practicallaw.com/T3961), paragraph 10, for the Land Registry's requirements on execution by attorneys, including attorneys appointed under trustee powers and LR Practice Guide 09 - Powers of attorney and registered land (www.practicallaw.com/T3748). Note that the Land Registry suggests that the name of the witness should be stated in block capitals in the execution provisions.


[END QUOTE]

I guess it would be helpful to find an actual definition in the act for 'property' - which will confirm the above assertion.

Hi HWNN,

Many thanks for this info. After reading these, is it correct for me to assume that instead of just 2 signature as below, they should also have 2 witnesses signatures... therefore is this DOA invalid?

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

The more I look at that ''document'' the more contrived it appears.

Did you remove the signatory's name? If not I'm sure that that person has to put their name in a legible form after 'Executed as a Deed by'' and date it.

If CL Finance are a UK company would they employ an 'attorney' rather than a solicitor even if Ozannes are a CI based practice especially when none of the 17 partners listed at Ozannes at

Ozannes

are described as Attorneys [they are all solicitors or barristers] and none appear to have a name that would appear as that signature on your ''deed''.

Some more digging might be required here!

[Horse_with_no_name]

Re: Another court case - hearing on the 24th August..HELP!

I would say YES. Basically a deed executed by an attorney must be attested by a witness. Your DoA is missing two witness attestations.

The LoP 1925 (Law of Property Act) provides the definition of "property" here - click link and scroll down to section 205, subsection (1)(xx) :-

s205 subsection (1)(xx)

[quote]
(xx)“Property” includes any thing in action, and any interest in real or personal property;
[end-quote]

Note: Section 205 is called General Definitions. It is in Part XII "Construction, Jurisdiction, and General Provisions" of the LoP 1925.

---------------------
So to recap. You need to make the following points :-

1) A debt is signed under s136 Lop 1925, which refers to "Legal Assignment of things in action"

2) s205 (1)(xx) Lop 1925 defines "property" to include any thing in action

3) s74(3) & s74(4) LoP 1925 require a deed executed by an attorney, which conveys an interest in property, to be attested by a witness.

4) s1 (3)(a) of the Law of Property (Miscellaneous Provisions) Act 1989 also state for a deed to be validly executed by an individual it must be attested by a witness

5) Your alleged deed of assignment is improperly executed and therefore not perfected. The assignment cannot be absolute, and the Claimant has therefore commenced proceedings in his own name without a right of action, the claim is therefore fatally flawed.

6) You also require certified proof of the instrument creating the alleged Power of Attorney - as per section 3, Powers of Attorney Act 1971.

Some case law would be nice. Perhaps you could ask for an adjournment if necessary. Finally - I'm not a lawyer, I'm just trying to help.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

many thanks for this HWNN..this really help me as I am struggling here. Phew..10 hours to go & I got this to digest but nevertheless I will endeavour to understand. I was in need of things to dissect para 6 of their WS & you've just given it ..god bless you..

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

anybody know case law for deed of assignment to be valid?

[mystery1]

Re: Another court case - hearing on the 24th August..HELP!

This was posted by PT2537 2/3 years ago. I have no clue but hopefully it helps you.


20. Notice in writing.



In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person1 from whom the assignor would have been entitled to claim the debt or the chose or thing in action2. Where there are joint debtors and covenantors, notice to one who is a bankrupt is unnecessary3. The notice need not be formal4, and need not be written with the intention that it should perform the function of giving notice5; but it must be given even though the debtor cannot read6. The assignment only operates under the Act as from the date of the notice7, that is, the date on which it is received by or on behalf of the debtor8. If the debt is released or extinguished by payment or otherwise before notice is given, there is no transfer under the Act9.
It has been held that if the date of the assignment is wrongly stated the notice is ineffectual10, though if no date is given at all the notice may be good11. It may also be ineffectual if it does not state the amount of the debt correctly12.
The Act prescribes no limit of time within which the notice must be given13, and a notice given after the death of the assignor14, or after the death of the assignee15, is effectual.
The Act does not prescribe that the notice must be given by any particular person16. Thus it may be given by the personal representatives of a deceased assignee, even though no notice has been given by him or by the original or any intermediate assignee17.
In the case of a company, notice to the manager at the works, though not communicated by him to the head office, may be sufficient18.
It is thought that where there have been two assignments of the same debt, of both of which notice has been given to the debtor, but the assignee under the second assignment, without having notice of the first, gave notice to the debtor of his assignment before notice was given of the first assignment, he will have priority19.
If a debtor has given a negotiable instrument, for example a cheque, in payment of the debt, a subsequent notice that the debt has been assigned may be disregarded by the debtor even if the creditor still holds the cheque20.







1 Amalgamated General Finance Co Ltd v CE Golding & Co Ltd [1964] 2 Lloyd's Rep 163 (no legal assignment because no notice to underwriters); Shaw v Applegate [1978] 1 All ER 123, [1977] 1 WLR 970, CA (equitable assignment of benefit of negative covenant became legal when notice given to covenantor). It seems that notice should be served on every person who would be a necessary party to a claim on the debt: see Josselson v Borst [1938] 1 KB 723 at 736, [1937] 3 All ER 722 at 727–728, CA, per Greer LJ, and at 740 and 732 per Slessor LJ. Notice should, accordingly, be given to all trustees: see para 53 post. In relation to a cause of action in tort see also Perry v Tendring District Council [1985] 1 EGLR 260; RL Polk & Co (Great Britain) Ltd v Edward Hill & Partners [1988] 1 EGLR 142.
2 Law of Property Act 1925 s 136(1). An assignment will be good in equity as between assignor and assignee without notice: Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 ChD 128, CA. See further para 42 post. The suspensory character of the proviso in Gatoil Anstalt v Omennial Ltd [1980] 2 Lloyd's Rep 489 meant that the notice of assignment did not satisfy the requirements of the Law of Property Act 1925 s 136 (as amended).
3 Insolvency Act 1986 s 345(4); Josselson v Borst [1938] 1 KB 723, [1937] 3 All ER 722, CA.
4 Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177.
5 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.
6 Hockley and Papworth v Goldstein (1920) 90 LJKB 111 (where the debtor's inability to read was well known to all the parties, and clear oral notice was given but was ineffective).
7 Law of Property Act 1925 s 136(1).
8 Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA); and see para 21 post.
9 Lee v Magrath (1882) 10 LR Ir 313 at 319, 326, CA (where the transferor appointed the debtor her executor); Re Westerton, Public Trustee v Gray [1919] 2 Ch 104 (payment of interest to assignor of fund before notice of assignment of fund). Cf Jenkins v Jenkins [1928] 2 KB 501.
10 Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839; WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA. It is not so in the case of an equitable assignment: Whittingstall v King (1882) 46 LT 520.
11 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.
12 WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA, obiter per Denning LJ.
13 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.
14 Walker v Bradford Old Bank (1884) 12 QBD 511; Re Westerton, Public Trustee v Gray [1919] 2 Ch 104.
15 Bateman v Hunt [1904] 2 KB 530, CA.
16 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.
17 Bateman v Hunt [1904] 2 KB 530, CA (where the notice was given by the executor of a sub-assignee).
18 William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, HL (a decision on an equitable assignment).
19 See Marchant v Morton, Down & Co [1901] 2 KB 829.
20 Bence v Shearman [1898] 2 Ch 582, CA.



M1

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

Sorry I cant help with the case law (or much else on the DOA issues) but wish you the very best of luck in court today x

[enaid]

Re: Another court case - hearing on the 24th August..HELP!

Ditto, I hope it goes well for you x

[Spamheed]

Re: Another court case - hearing on the 24th August..HELP!

All the best Z

[cymruambyth]

Re: Another court case - hearing on the 24th August..HELP!

I haven't been able to help but good luck.