Advice please - court claim received

[alham]

Re: Advice please - court claim received

P2 - "Whilst every effort by the Defendant to obtain this information has been unsuccessful," not clear, suggest inserting :" Following receipt of the Claim the Defendant made a CPR 31.14 request to the Claimant's solicitor requesting copies of original documents forming the basis of the Claim."

P7 I would take out "further rendered" and in the last sentence I'd insert " Pursuant to S127(3) Consumer Credit Act a failure to comply with S61(1)(a) and the prescribed terms requirements makes such agreement unenforceable".

P8 I don't understand the first sentence.

Also, throughout you should replace personal references (I, me) with "the Defendant" or "Mr Flinko" if it concerns something before the start of proceedings.

"20. Consequently, I do not believe that any notice of assignment was properly served upon me, and therefore any assignment has not been perfected ? in law. "

Timeline should start with date of the loan, and highlight every important date ( start of problems at the business, your last payment etc... including dates of any prior communication between you and loan provider/debt collectors/solicitors if any)

[flinko]

Re: Advice please - court claim received

Timeline should start with date of the loan, and highlight every important date ( start of problems at the business, your last payment etc... including dates of any prior communication between you and loan provider/debt collectors/solicitors if any)

Thanks,

The problem with the timeline prior to the claim form being issued is I don't have many records....I now know the reference number refers to a loan (it could have been a credit card also until I found a very old letter with the reference), most likely initially taken out circa 2001, last payment made likely to be circa 2007. I do remember at some point unsuccesfully attempting to reconcile with various claimants to pay interest only for a period etc but not sure if this is one of them or not.

Should I put all this in, or just details that I know (which is basically the stuff from date of claim issue.)

What about the format, should it follow same as a defence form - and who should it be sent to and when (assuming that the claimant will respond at some point)?
I have read elsewhere that defence don't normally submit a skeleton, so will this assist me in my defence?

If the I don't hear anything at all from the claimant, do I need to do anything?

[alham]

Re: Advice please - court claim received

Thanks,

The problem with the timeline prior to the claim form being issued is I don't have many records....I now know the reference number refers to a loan (it could have been a credit card also until I found a very old letter with the reference), most likely initially taken out circa 2001, last payment made likely to be circa 2007. I do remember at some point unsuccesfully attempting to reconcile with various claimants to pay interest only for a period etc but not sure if this is one of them or not. -- put this on your timeline, this is the crux of your cpr request, you don't know what they are talking about.

Should I put all this in, or just details that I know (which is basically the stuff from date of claim issue.)

What about the format, should it follow same as a defence form - and who should it be sent to and when (assuming that the claimant will respond at some point)? --- Every document you submit should be topped and tailed with
CLAIM Noxxxx

IN [court name]

CLAIMANT XXX

DEFENDANT XXX [include address]

NAME OF DOCUMENT

Leave large margin on the left, double space and use 11pt font. Make sure that each page has a footer that includes case no and page no

I have read elsewhere that defence don't normally submit a skeleton, so will this assist me in my defence? -- Where did you hear that? Everything you do that will assist court in making their decision will earn you unofficial brownie points.

If the I don't hear anything at all from the claimant, do I need to do anything? -- YES, the hearing is to hear your application so you need to be ready

Also, remember that, although you are notionally a "claimant" in this hearing you should refer to yourself as "The Defendant" as you are the defendant in the case that necessitated this hearing

[flinko]

Re: Advice please - court claim received

Ok, I have drafted the attached up - no doubt still mistakes in there so would appreciate a sanity check if you could please, other than that do you think im over-elaborating in areas or missing anything out I should be including?

Seems to be basically an elaborated version of my defence submission from December.

Where's Militant these days? not seen them here for a while.

[alham]

Re: Advice please - court claim received

Sorry but I will post a detailed response on monday as have no time now. I suggest that you call the court and find out when is the latest you can submit your skeleton. Remember, you want to lodge it as late as possible to give the other party the least time possible.

[flinko]

Re: Advice please - court claim received

Sorry but I will post a detailed response on monday as have no time now. I suggest that you call the court and find out when is the latest you can submit your skeleton. Remember, you want to lodge it as late as possible to give the other party the least time possible.

Called the court and they said that as it's only the 1st hearing of the application, there is no set date to get the skeleton in, just if I want to submit one then get it in "as soon as possible".

EDIT : Just read about Militant's accident over Xmas - wow, get well soon Militant, sounds terrible!

[flinko]

Re: Advice please - court claim received

I have received post today from the claimant's solicitor:

Letter (not sent registered, just normal mail) acknowledging receipt of my application for disclosure and noting that it relates to my request CPR from 14th November.

Attached, they have now sent me
a) a copy of the credit agreement (loan) from August 2000,

b) some sort of computer printout with various lines of code followed by one my address, name, post code, balance, account number etc (one of which states "ETL - Termination notice") - they say this is "screen prints confirming that a default notice was sent on 27 Nov 2009 and the information contained within that default notice"

c) an arrears notice letter dated 23-Jun 2011

d) an annual loan statement dated 20 January 2010 (stating last payment was made May 2009)

e) a "notice of assignment" from the claimant addressed to me dated 25/June/2011 advising of the assignment of all rights, title and interest to the claimant - Ive never seen this before, and arent I supposed to have this letter from the company who own the rights in the 1st place?

and of course an invite "in the circumstances, to avoid any further unnecessary costs being incurred" to withdraw my application to the court

Where do I start with this lot??

[flinko]

Re: Advice please - court claim received

As a start, surely a screen print with supposed details of what they have sent is insufficient for proof of default notice being served?
The agreement looks correct, dated with my signature at the time of taking out the loan.
The notice of assignment letter should come from the original loan company shouldn't it?

No idea how to put this all together in a framework of course, not even sure if I should continue with a defence?? (obviously that is what they want though, so am I just reacting as they want me to or do I still have a legitimate defence?)

[flinko]

Re: Advice please - court claim received

Seems I don't really have a defence here anymore?

Alternative to losing this is going bankrupt really as I don't have the money to pay this (on top of other debts), should I withdraw the application and invite the claimants to apply to make me bankrupt (thus saving me the cost)? Really don't know what to do now

[Sapphire]

Re: Advice please - court claim received

Flinko, going bankrupt is very serious but for some it is a way of getting things sorted, I've no experience of it, but I do know that one or two members who will be able to advise more, I'll pm them and ask if they will pop on here and give you the benefit of their experience.
In the meantime have a read of these, they may help

http://goingbankrupt.co.uk/

[mystery1]

Re: Advice please - court claim received

Can you do a summary of events with post numbers for any documents so i can help if possible ?

If you deny getting the notice of assignment, and can convince the court it's the truth, then they'll have trouble with service and as such there will be no case if handled well.

Alternatively contact Celestine and see if Watsons can arrange a conditional fee arangement for you so they can help. They deal with skint people frequently so may be able to help and would be a good option given you don't seem to have the strength to do it yourself. I did not notice this was small claims so to seek out Watsons would be futile. Please ignore that part.



M1

[FlamingParrot]

Re: Advice please - court claim received

I have received a claim dated 5th November from "Britannica recoveries - S.A.R.L Arrows" regarding a £2500 ish loan from the early 2000s which I last made a payment on in 2006 or 2007 (I think but not sure - I have had a lot of financial issues, mainly business-related, in the meantime)

Seems I don't really have a defence here anymore?

Alternative to losing this is going bankrupt really as I don't have the money to pay this (on top of other debts), should I withdraw the application and invite the claimants to apply to make me bankrupt (thus saving me the cost)? Really don't know what to do now

Bankruptcy is a very drastic step to take, it may be appropriate in some cases but I note from your first post on this thread, that this debt is just £2,500! If this is your only debt, I'd say it's not really worth going BR over.

If your defence isn't solid enough, there may be other alternatives, such as an offer of monthly repayments or a Tomlin order. Even if you went to court and lost, you'd end up with a CCJ which, altough by no means ideal, is nowhere nearly as serious as being bankrupt. Even a judge can't order you to pay more than you can afford. You would have to do an I&E form to establish how much you could pay, if you are on benefits or on a low income, you may just end up paying £1/month, many people have CCJs and pay just that.

At the end of the day it all depends on your circumstances: whether you are a homeowner, any other debts you may have, etc., however, I wouldn't even think about BR for such a small amount.

[flinko]

Re: Advice please - court claim received

Can you do a summary of events with post numbers for any documents so i can help if possible ?

If you deny getting the notice of assignment, and can convince the court it's the truth, then they'll have trouble with service and as such there will be no case if handled well.

Alternatively contact Celestine and see if Watsons can arrange a conditional fee arangement for you so they can help. They deal with skint people frequently so may be able to help and would be a good option given you don't seem to have the strength to do it yourself.

M1

Thanks both - M1, basically I issued a CPR31.14 request back in November which the claimant hadnt responded to at all (until what I received on the 14th January) - so based upon advice I decided to submit a defence and also a N244 application for strike-out based on non-compliance of my request. The hearing is next Tuesday, and now they have sent all I have requested (albeit non-registered post and imo some dodgy methods like screen prints of default and termination notices) it seems I don't really have a defence except for possibly the fact that I don't recall ever having a notice of assignment and that it should have been served as per Sections 136 & 196 of the Law of Property Act 1925

Law of Property Act (1925) s196
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.

Obviously I don't know if they have proof of postage or returned post etc and maybe this is too thin a defence anyway?

As you say, this may fly if handled well, I just don't know if im experienced enough to deal with it

[mystery1]

Re: Advice please - court claim received

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.











If you didn't get it then they would struggle to have proof you did.

M1

[flinko]

Re: Advice please - court claim received

Bankruptcy is a very drastic step to take, it may be appropriate in some cases but I note from your first post on this thread, that this debt is just £2,500! If this is your only debt, I'd say it's not really worth going BR over.

If your defence isn't solid enough, there may be other alternatives, such as an offer of monthly repayments or a Tomlin order. Even if you went to court and lost, you'd end up with a CCJ which, altough by no means ideal, is nowhere nearly as serious as being bankrupt. Even a judge can't order you to pay more than you can afford. You would have to do an I&E form to establish how much you could pay, if you are on benefits or on a low income, you may just end up paying £1/month, many people have CCJs and pay just that.

At the end of the day it all depends on your circumstances: whether you are a homeowner, any other debts you may have, etc., however, I wouldn't even think about BR for such a small amount.

Hi FP,

Yes it is drastic, this isn't the only debt from the period though, quite complicated but there is even one debt of £20k which is a company/business debt that I don't believe was guaranteed but I remember the bank, when asking for it to be returned insisted it was guaranteed - complicated. Total other debts (all older than 4/5 years) are probably around the 38k mark. I share a home with my mother and am named as a trustee on a parent's property so I think I probably need some proper advice on that if I cant defend this. I havent heard from other creditors at all in at least a year but obviously doesn't mean anything as they are not statute barred for another year or 2 at least.