Lowell Portfolio I Ltd v dasher13

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

[MENTION=71570]R0b[/MENTION] [MENTION=55034]nemesis45[/MENTION]

It also says in the witness statement that upon my breach of the terms of the account the cause of action was subject to a legal assignment on 28/8/14 but the apparent letter from Cap 1 they have submitted to the court which is dated 16/7/15 states that Cap 1 sold my account to Lowell on 24/6/15.

Can you guys get access to Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 Q.B. 607.
According to Chitty, the NoA may be invalid if the wrong date is given.
Chitty on Contracts p1482
https://books.google.co.uk/books?id=...uction&f=false

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

Hi Nem - on Clearscore there is an account for Lowell listed under closed accounts which states it was opened on 8/8/11 - different to the 6/8/11 on the credit agreement they have provided...

On Clearscore there is not a Cap 1 account listed as closed, or open for that matter, but everything else is on there.

Unfortunately that not going to help much but every little inconsistency may be useful later so keep everything safe.

nem

- - - Upda12ted - - -

Hi Nem - on Clearscore there is an account for Lowell listed under closed accounts which states it was opened on 8/8/11 - different to the 6/8/11 on the credit agreement they have provided...

On Clearscore there is not a Cap 1 account listed as closed, or open for that matter, but everything else is on there.

Unfortunately that not going to help much but every little inconsistency may be useful later so keep everything safe.

nem

- - - Updated - - -

@R0b @nemesis45

Can you guys get access to Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 Q.B. 607.
According to Chitty, the NoA may be invalid if the wrong date is given.
Chitty on Contracts p1482
https://books.google.co.uk/books?id=...uction&f=false

Gonna take a look!

nem

12-100 delivery of a deed [MENTION=5553]charitynjw[/MENTION]

nem

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

& from Halsbury's

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.

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

12-100 delivery of a deed @charitynjw

nem

I can't see this in the online version, nem.

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

Same sort of wording Charity as in Halsbury's quote date inaccurate ( but if no date is given it may survive { the Deed that is}.
Relying on some of my MOJ data on a hard drive.

nem

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

http://www.getoutofdebtfree.org/foru...4#.WD29qRrfWEc

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

http://www.getoutofdebtfree.org/foru...4#.WD29qRrfWEc

Lol!

Got that, R0b, but possibly not the most reliable or authoritative source?

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

All this is going way above my head!

Quick question - can letters written/sent on a Without Prejudice basis be used by Lowell in their witness statement/defence?

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

All this is going way above my head!

Quick question - can letters written/sent on a Without Prejudice basis be used by Lowell in their witness statement/defence?

Only with the permission of the court. I intensely dislike the us of WP in these cases.

nem

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello all.

I know I have said this a thousand times but thank you, thank you, thank you.

I am fairly sure that I need to get my Witness Statement sent tomorrow so I have attached my draft. If you could all take a look and let me know if any of it is right I would really appreciate it. I have referred to my exhibits as XX1, XX2 etc and will put my initials in place of the XXs in the final version - is that correct?

Also I am confused about para 3 of my witness statement - what should it read?

My Witness Statement is long so please can you let me know if bits of it need to go or if I have missed bits out that need to be in there?

Also I am conscious of not putting legal things in there as R0b has said and am a little unsure if some of my paragraphs can stay in. Again I would really appreciate your advice.

Thank you all again.

dasher

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

I have just noticed that I use the word 'my' rather than 'the Defendant' in para 12 b.

Also I have not mentioned that when Lowell sent me a big pack of documents after my data protection request there was no default notice, no NOA and no credit agreement in that pack - is that important??

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Just a quick one before my witness statement is ripped apart..!

Am I right that I prepare for the hearing by making sure I have all the case law that is applicable ready to draw to the judge's attention? I don't put it in the Witness Statement in any way?

Thank you!

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Slightly updated Witness Statement uploaded so if anyone can help I would be eternally grateful. Thank you all again.

Really unsure about para 3 - not sure what I am supposed to put!

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

No need to panic too much, the standard directions are that the WS needs to be filed and served on each other no less than 14 calendar days before trial, not working days so I would calculate that to be 4pm on 5 December.

Have a couple things to do but will look at this tonight or tomorrow.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Thank you R0b...lifesaver.