Deed/Notice of assignment

[Roland]

i Jo n

Just picked up the end of this thread, and would like to make a comment regarding the deed of assignment. The creditor(assignor) or the assignee is under no legal compunction to provide this to the debtor. The deed itself is a covenant between the assignor and the assignee and not the the debtor.

It may be possible to ask to see sight of the notice of assignment issued under section 136 which is the statutory notice which must be sent to the debtor when the deed was made, this would have needed if the assignment was "absolute" and assigned all rights, and duties under the contract to the DCA.

[nemesis45]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

i Jo n

Just picked up the end of this thread, and would like to make a comment regarding the deed of assignment. The creditor(assignor) or the assignee is under no legal compunction to provide this to the debtor. The deed itself is a covenant between the assignor and the assignee and not the the debtor.

It may be possible to ask to see sight of the notice of assignment issued under section 196 which is the statutory notice which must be sent to the debtor when the deed was made, this would have needed if the assignment was "absolute" and assigned all rights, and duties under the contract to the DCA.

See Lord Dennings Judgement made when he was Master of the Rolls.

nem

[Roland]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

See Lord Dennings Judgement made when he was Master of the Rolls.

nem

That a debtor was entitled to see a deed of assignment ? do you have a link.

I know a court can order a document to be disclosed if he thinks it is relevant, but this is whilst proceedings are in place, i didn't think this information was available on demand under pre action protocols. After al the agreement itself is between creditor and DCA, as said be interested to see anything which indicates otherwise.

[MIKE770]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

Letter of assignment but not the commercial sensitive actual Deed of Assignment!??????

[jon1965]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

That a debtor was entitled to see a deed of assignment ? do you have a link.

I know a court can order a document to be disclosed if he thinks it is relevant, but this is whilst proceedings are in place, i didn't think this information was available on demand under pre action protocols. After al the agreement itself is between creditor and DCA, as said be interested to see anything which indicates otherwise.

the case is Vann Lynn developments v Pelias construction. I realise it is FMOTL ground but it is about the only part of their case I think has legs.
Remember they can redact the sensitive info, there is case law for that as well.

i have yet to find a creditor who will willingly give it up.

notice of assignment is an absolute requirement from LPA

it is an opinion and not the subject of the thread

[Roland]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

Yes i am aware of the case and of the law introduced in 1999 which modified the legal position regarding third party c;aims on a contract( contract rights of tird parties act). This modified the common law situation where under certain cases a third party could be allowed to take action against the principle party(or parties) for contractual breach. The circumstances to which this applies are however are very limited and would have to be examined in order to be allowed in argument.

http://www.legislation.gov.uk/ukpga/1999/31/section/1



Right of third party to enforce contractual term.

(1)

Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a)

the contract expressly provides that he may, or

(b)

subject to subsection (2), the term purports to confer a benefit on him.

(2)

Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

(3)

The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

(4)

This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

(5)

For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

(6)

Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

(7)

In this Act, in relation to a term of a contract which is enforceable by a third party—

• “the promisor” means the party to the contract against whom the term is enforceable by the third party, and
• “the promisee” means the party to the contract by whom the term is enforceable against the promisor.

I am unsure how this would relate to disclosure, where the argument merely was if the document existed, this would be just a disclosure order granted by the judge on evidence presented which put the existence of such a document in question.

EDIT incidentally wasn't the case mentioned in relation to the section 136 notice rather than the deed ?

[nemesis45]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

This all rather off topic now.

nem

[Roland]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

Letter of assignment but not the commercial sensitive actual Deed of Assignment!??????

Yes sight or proof of delivery of the section 136 notice of assignment can be requested and must have been issued in order to enable the equitable assignment, but not the deed.

[Roland]

Re: Urgent help needed DLC/Hilesden Notice of Non Payment

This all rather off topic now.

nem

I suppose unless the OP is requesting the wrong item, and basing part of their claim around none disclosure of the same.

[Kati]

Re: Deed/Notice of assignment

OK guys ... I've moved all the extra posts over to the Lamp Post (to keep the main thread on topic)

I'd kinda like to know the answer to this question tho' so feel free to continue discussions here

[jon1965]

Re: Deed/Notice of assignment

Kati
If he has time ask PT because he led me to believe that the Vann Lyn developments ruling was still acceptable and there was another ruling that says they can redact all the sensitive data. the Deed is the actual proof that the debt has been sold. As far as I am aware there is nothing that has changed that alters this. As always legislation needs picking apart and I am not convinced that this act denies the right to see the relevant parts of the Deed.
I stand to be corrected

I have yet to find any debt purchaser prepared to reveal it unless ordered to by a judge BUT they hide behind it being commercial data whereas i would expect them to hide behind an act if it had merit

[Roland]

Re: Deed/Notice of assignment

The situation with assignment under the law of property act, is that an assignment of interest in goods can be made by two methods that is equitable assignment and absolute assignment.
On the equitable variety the assignee, (DCA) only owns title to the income from the goods he does not hold title to the goods themselves, on an absolute assignment he does (as well as all rights, and duties under the legislation).

In material terms what differentiates the two is a notification sent to the debtor(the third party) telling them that the account has a new owner. If this is not sent the tranfer can only be equitable. The notice is required under section 136 of the act.


THe deed of assignment is a contract between the creditor and the DCA and the debtor being a third party has no right under common law to demand sight of it, that is until recently when a court case stated that if he was mentioned in the contract and was damaged by a breach, under certain circumstances he could sue either party, on that breach, other than this the debtor has no right to any contact with the deed.

The notice of assignment is a different matter and it is this that is referred to in the case mentioned, in that case it was found that if the notice was not sent in proper form to the debtor telling them that the account had been sold, then the absolute assignment was not valid and could only be in equity.

[FlamingParrot]

Re: Deed/Notice of assignment

It was always my belief that a debtor/defendant had no right to the deed of assignment because it referred to a transaction between two parties not involving the debtor or defendant, a contract between the OC and the debt purchaser that did not affect the debtor in any way - the outstanding amount would be the same, no additional charges incurred for the assignment, etc. so all they would be entitled to would be the NoA to establish ownership of the account. The deed would contain sensitive commercial information and would probably refer to a number of accounts purchased at the same time.

I always though it was just the FMOTL site that said you are entitled to it, until I read about the case above, so I'd also be interested to find out what the legal position is, what arguments (excluding FMOTL) would one have to request the deed.

[Roland]

Re: Deed/Notice of assignment

OK guys ... I've moved all the extra posts over to the Lamp Post (to keep the main thread on topic)

I'd kinda like to know the answer to this question tho' so feel free to continue discussions here

Ck Kati as long as the OP realises that any kind of defence based on the one presentation of a deed of assignment will fail.

[jon1965]

Re: Deed/Notice of assignment

Roland
I think you missed the point completely. I am not the OP and nowhere was it said this was a defence. I said I believed the right to view it was there but I had neither the time nor money to take it through the court.
I also believe that it will be necessary for someone to do that in order to gain clarity.
I am not sure who's benefit you detailed the differences between an NOA and DOA for.
No one here is suggesting that a defence based purely on lack of DOA is a good idea.. I must say though that a few well placed letters to DCA's has kept them quiet for over a year