**DISMISSED!!** Urgent help - hearing 10/11

[Addocain]

Re: Urgent help - hearing 10/11

Hi

Does anyone have any other thoughts,

I am petrified of attending Court

[Addocain]

Re: Urgent help - hearing 10/11

Anyone please? :-)

[charitynjw]

Re: Urgent help - hearing 10/11

Hi

Think it is attached.

It says NOA was issued to Defendant around 10 June 2013, a copy of the template which would have been sent is attached.

Statement signed by Legal Assistant at Lowells with statement of truth

- - - Updated - - -

This is what I have found:

Law of Property Act 1925

Under section 136 of the Law Property Act 1925 (“LPA 1925”) notice of assignment must be given to the other party to a contract (i.e. the borrower) expressly in writing. There is no prescribed time limit for giving notice but the assignment is only legally valid when the borrower receives the notice.

Until proper notice is given, only an equitable assignment has taken place. An equitable assignment differs from a legal assignment in that where there is a legal assignment the assignee can bring an action (e.g. for recovery of a debt) in its own name against the borrower. On an equitable assignment the assignee would need to join the assignor as a party to the action before an action could be brought against the borrower. Alternatively, notice would have to be served in the correct manner before an action could be brought in the assignee’s name.

Section 136 LPA 1925 is silent as to how the notice should be served. The default statutory provision is found under section 196 LPA 1925. It provides that if notice is given to the other party by registered letter and is not returned undelivered, it will have been deemed to have been served. This means that whilst notice may be given expressly in writing, it will not be deemed served unless it has been sent by registered post.

Section 196 LPA 1925 refers to “registered letter”. The postal service “registered post” no longer exists. Instead, a notice should now be sent either as first class post with a certificate of posting (available through Royal Mail) or by recorded delivery; under the Recorded Delivery Act 1962 any notice which is deemed served by registered post will also be deemed served if sent by recorded delivery.

Section 196 (5) also states that its provisions extend to notices required to be served unless a contrary intention appears. In other words, if there is an express clause in the contract (which would include a lender’s mortgage conditions) that stipulates how any notices necessary under the contract are to be served, that will take precedence over the statutory provision in section 196.

Hi

Does anyone have any other thoughts,

I am petrified of attending Court

Anyone please? :-)

Kinch-v-Bullard [1999] 1 WLR 423
Neuberger J (as he then was) deemed that 'service' was sufficiently satisfied if sent via 1st class post (Correctly addressed & stamped)

‘....natural meaning of Section 196(3) is that if a notice can be shown to have been left at the last known abode or place of business of the addressee, then that constitutes good service, even if the addressee does not actually receive it……a notice served in accordance with Section 196(3) was validly served even if it could be shown never to have come to the attention of the addressee….once the sender has served the requisite notice the deed is done and cannot be undone..’

The Interpretation Act 1978 s7 then applies.
See also http://www.propertymanagementfocus.c...rded-delivery/

Personally I don't think that this is correct, & I prefer the contrasting reasons in Holwell Securities v Hughes, & Re 88 Berkeley Road.
But it will be for you to convince the Judge in your particular case.
Obviously, opinion via a website blog (such as you, & I, have quoted above) is unlikely to be given much (if any) evidential 'weight' by the court.

[charitynjw]

Re: Urgent help - hearing 10/11

Re their late submissions, & especially if they turn up at court with 'better' copies, you could refer to the Court of Appeal Denton/Decadent Vapours/Utilize TDS case.
In essence a 3-part test is applied to breaches of court orders.....how serious it/they (breaches) are, is there a good reason, then can the court's Rule 3.9 be applied.
http://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html

[Addocain]

Re: Urgent help - hearing 10/11

Claim dismissed, thank you for your help

[Stu]

Re: Urgent help - hearing 10/11

Well done on sticking with it... these are hard situations to deal with ...

[nemesis45]

Re: Urgent help - hearing 10/11

Claim dismissed, thank you for your help

Well done both Addocain and [MENTION=5553]charitynjw[/MENTION].

nem

[Addocain]

Re: Urgent help - hearing 10/11

Thanks for all your help I couldn't have done it without you.

The Barrister was horrible and was very rude afterwards.

They said that the witness statement which I sent on 24/10 didn't arrive till today!

The DJ awarded me costs of £56.50

You have all been so helpful

[nemesis45]

Re: Urgent help - hearing 10/11

Thanks for all your help I couldn't have done it without you.

The Barrister was horrible and was very rude afterwards.

They said that the witness statement which I sent on 24/10 didn't arrive till today!

The DJ awarded me costs of £56.50

You have all been so helpful

It's an excellent result!!

The barrister sound like a bad loser and very childish.
nem

[Addocain]

Re: Urgent help - hearing 10/11

She was SO rude.

Wonder if she will appeal?

The DJ was very scathing but it was the fact the NOA was a template, the conditions were unreadable and the fact it was all filed late which he said was on the basis he dismissed the claim.

I can't tell you how relieved I feel

[nemesis45]

Re: Urgent help - hearing 10/11

She was SO rude.

Wonder if she will appeal?

The DJ was very scathing but it was the fact the NOA was a template, the conditions were unreadable and the fact it was all filed late which he said was on the basis he dismissed the claim.

I can't tell you how relieved I feel

I suspect that she was more than a little peeved because her instructing solicitor (s) was a complete TW * T. Lowell sols fail again.

nem

[Addocain]

Re: Urgent help - hearing 10/11

Ha ha you may be right!

Thanks Nem

[Celestine]

Re: Urgent help - hearing 10/11

Marvellous result! Congratulations and well done for holding your nerve! I'm glad the Beagles were able to give you some last minute support and help ahead of the hearing, its a pretty terrifying process but it sounds like you had a great judge! Can you share the judges name and court please, we like to keep track of the decent ones!