Advice please - court claim received

[alham]

Re: Advice please - court claim received

The issue here is about the Assignment and whether they have a right to sue you for it. By filing a claim they have declared that they own the account and that it was properly assigned to them. If you challenge them they can't do it now because they are required to prove that they did it properly in the first place.

Assignment is important because otherwise any DCA could claim to own an account and take action. I had 3 chasing me last year for a small debt that I settled in 2011 with one of them. DCAs are notoriously bad at paperwork and many deceitfully claim to own debts that they don't. When they do file they work on the principle that most people won't fight them and they will win, so they can afford to lose most of the claims. Bear in mind that they only pay around 5% of the face value for each one, so if they get the full payment for a few they can forget the others that are harder to collect. These people look for easy money and their attitude to you changes when they see you can and will fight back.

Very nicely explained.

[flinko]

Re: Advice please - court claim received

Drafted defence.....any thoughts?

1. The Claimant's case is that the Defendant entered into a regulated agreement with &%! (No. 0000000) and that this account was assigned to the Claimant on 14/07/11. The Defendant contends that the Claimant failed to demonstrate validity and to support its allegations of this assignment. As a result the defendant moves for the case to be struck out pursuant to CPR 3.4.2 (a), (b) and (c).

2. In order to prove its claim, the Claimant must establish that it (The Claimant) complied with the provisions of the Consumer Credit Act 1974 in that it must show that it served a proper default notice upon the claimant together with a separate termination notice before proceedings were commenced. Secondly, it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925) and that proper notice of any such assignment was given to the Defendant (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824).

3. It is submitted that it is the obligation of the Claimant to prove all of the matters referred to above. As yet, the Claimant has failed to produce evidence requested by the Defendant in the Part 18 request sent to the Claimant on the 20/01/2013.

4. The defendant notes to have a right of action in their name, the claimant would need to serve a Notice of Assignment as laid out in Section 136 of the Law of Property Act 1925 and that section 196 of the same act sets out how a Notice of Assignment must be served.

5. Therefore pursuant to point above, the Defendant requires the claimant to provide Notice of Assignment and also proof of service of the said Notice pursuant to S196 Law of Property Act 1925 and put them to strict proof that such documents exist and were served correctly and also the defendant requires the deed of assignment be provided to the court for inspection

6. The Defendant respectfully submits to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

7. The requirements for service via the post are
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.

8. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

9. The Defendant did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have provided assurance that they have not.

10. To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

11. Consequently, the Defendant does not believe that any notice of assignment was properly served, and therefore any assignment has not been perfected in law.

[mystery1]

Re: Advice please - court claim received

There is no prescribed format for assignment. There are duties they need to perform regarding service and the need to tell you about it but there is no prescribed form for that.

Have you ever requested a copy of any agreement from the creditor or the owner of this agreement at all ?

Did you ever get a default notice ?

Have you checked the agreement and default notice as these do have prescribed forms and terms ?

I'd want more than just they didn't send the NOA by registered post even though that should win.

M1

[flinko]

Re: Advice please - court claim received

There is no prescribed format for assignment. There are duties they need to perform regarding service and the need to tell you about it but there is no prescribed form for that.

Have you ever requested a copy of any agreement from the creditor or the owner of this agreement at all ?

Did you ever get a default notice ?

Have you checked the agreement and default notice as these do have prescribed forms and terms ?

I'd want more than just they didn't send the NOA by registered post even though that should win.

M1

I requested a copy of the agreement from the claimant via CPR31.14 as stated early in this thread - they complied after I had filed a defence based on that. I got a default notice from the original creditor.
With regards to the prescribed terms etc, I think we went over that circa post 127 here.

Since they complied with my CPR31.14 request regarding their PoC (the agreement with the original creditor, default notices etc), im not sure I have much more than challenging the assignment. I mean, how do I know that they are the legal owners of the debt and not a bunch of chancers unless im notified by the assignor and assignee?

[mystery1]

Re: Advice please - court claim received

Sorry, i meant under s78.

M1

[flinko]

Re: Advice please - court claim received

Sorry, i meant under s78.

M1

Sorry M1, I don't follow?

Does s78 have relevance? I just read it but don't understand the link sorry?

[flinko]

Re: Advice please - court claim received

Sorry M1, I don't follow?

Does s78 have relevance? I just read it but don't understand the link sorry?

M1? What did you mean by s78?

Need to get the defence in during this week as im away early next week for a couple of days - any more thoughts on the draft defence?
I agree with M1 on the "I'd want more than just they didn't send the NOA by registered post even though that should win." part, but it's pretty much all I have right now.

[mystery1]

Re: Advice please - court claim received

M1? What did you mean by s78?

Need to get the defence in during this week as im away early next week for a couple of days - any more thoughts on the draft defence?
I agree with M1 on the "I'd want more than just they didn't send the NOA by registered post even though that should win." part, but it's pretty much all I have right now.

Did you ever send a request under s78 cca and pay a £1 charge for a copy of the agreement which has certain requirements prescribed to it or did you only ever ask as part of the court process under cpr 31.14 which has no prescribed requirements ?

M1

[flinko]

Re: Advice please - court claim received

Did you ever send a request under s78 cca and pay a £1 charge for a copy of the agreement which has certain requirements prescribed to it or did you only ever ask as part of the court process under cpr 31.14 which has no prescribed requirements ?

M1

Only via CPR31.14. Should I be sending a CCA request to the claimant for the full agreement?

[mystery1]

Re: Advice please - court claim received

Only via CPR31.14. Should I be sending a CCA request to the claimant for the full agreement?

Bit late now.

Is the agreement what you signed ? Does it have the required elements ?

M1

[flinko]

Re: Advice please - court claim received

Bit late now.

Is the agreement what you signed ? Does it have the required elements ?

M1

It is a copy of the original agreement that I signed. it only contains the normal direct debit T&Cs, nothing else of note regarding the exclusion of other elements. It may not be the complete agreement - I can't remember from 12 years ago what the agreement included in total?

[mystery1]

Re: Advice please - court claim received

Bit late now.

Is the agreement what you signed ? Does it have the required elements ?

M1

Having thought about this, i would send a s78 request. There are various judgements which say going to court is not enforcement but gaining a judgement is enforcement and therefore you have plenty time to get your s78 reply. For less than £3 it can be a good thing but can do no harm.

M1

[flinko]

Re: Advice please - court claim received

Having thought about this, i would send a s78 request. There are various judgements which say going to court is not enforcement but gaining a judgement is enforcement and therefore you have plenty time to get your s78 reply. For less than £3 it can be a good thing but can do no harm.

M1

Is this draft ok?

and where should I send it, the claimant or the claimant's solicitor as per all other correspondence so far?

Request pursuant to Section 78 of the consumer credit Act 1974

Dear Sirs,

I am formally requesting a true copy of the executed credit agreement with references to my account with you. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 s.78 (1) for credit) - your obligation also extends to providing a statement of account. I enclose £1 in payment of the statutory fee.

You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

I request receipt of the documents within 5 days due to the time constraints of this case.

Yours sincerely

Anything to add to the above?
I would think they would probably reply with "we already sent you the agreement" etc?

What about the actual defence, it needs submitting before Friday so any thoughts on that?

[mystery1]

Re: Advice please - court claim received

Don't add the last line.

As for the defence, we'd need some info to go on. Scan the agreement and default notice in and hide the personal details but not the dates and it may help.

Also describe how you got the card where you signed up etc.

M1

[flinko]

Re: Advice please - court claim received

Don't add the last line.

As for the defence, we'd need some info to go on. Scan the agreement and default notice in and hide the personal details but not the dates and it may help.

Also describe how you got the card where you signed up etc.

M1

ok, ill take out the timeframe line.

Ill send to the claimant today by snailmail and also email the claimant's solicitor to inform them of my request.

Will scan the docs this afternoon and upload here. thanks.