Help needed with LCS and 1st credit Claim - possible fraudulent documents

[red6two]

I received a claim form from Northampton court, on 15th Sept 2010 for a debt of £10777 plus costs amounting to £11067. The claim was issued by 1st credit and their sols Judge and Priestley. Apparently, 1st credit had been assigned the debt from MBNA with whom I had a loan in April 2009.
I submitted a CPR request to them on 23/09/2010. They didn’t reply and I submitted an embarrassed defence on 12/10/2010.
The case was stayed on 15/11/10. On 19/11/2010 I received a letter from LCS ‘solicitors’ who are the legal dept of 1st Credit. They advised me that they are the new solicitors, enclosed with the letter were the following documents:
Change of solicitor form, a notice of assignment dated 07/04/2009 and issued by 1st credit and a statement of my account . The statement clearly shows and previous correspondence proves that around April 2009, when the debt was supposedly assigned to them the balance was around £9798.
Yet the Notice of assignment shows a balance of £11082.36 as at 07/04/2009. Incidentally, this is the same balance as at Sep 2010, as they’ve added on the court fees etc!!

They also mentioned in the letter that they consider I have sufficient evidence to prepare a detailed defence and I should file it by 10/12/2010.

With regards to the above, I need to know the following:
1. If the case is stayed, can they ask me to file another defence without first applying for an order to lift the stay. According, to the court they haven’t done this yet.
2. The notice of assignment is clearly not genuine, it has been recently created and than backdated. Can I apply to the court to have the case struck out, on the basis that their actions are an abuse of process and amount to fraud.
3. LCS ‘solicitors’ are not solicitors, they are not registered with the SRA or law society – is this misrepresentation?
4. Would I be right in writing to LCS and advising them that I have referred the matter back to the court for a decision on the documents they’ve sent me and upon receiving the court’s decision, I will seek extra time to submit a defence should the need arise.
Any help with the above would be really appreciated, as I need to make my move by 26th November. Many Thanks

[middenmess]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

Apparently, 1st credit had been assigned the debt from MBNA with whom I had a loan in April 2009.

a notice of assignment dated 07/04/2009 and issued by 1st credit

How does that work ?

Loan taken out and immediately assigned??

Read more at: Help needed with LCS and 1st credit Claim - possible fraudulent documents - Legal Beagles Consumer Forum

[Judge mental]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

Hi:

I am happy to share with you what I know.

Case stayed = Proceedings are halted
There are usually conditions attached like a time limit or pending specified actions or instructions.
What were the terms of the stay?

For an assignment to be valid there need to be 3 specific requirements fulfilled.
1) The assignment of the debt (a written document between the seller and buyer of the debt)
2) Notice of that assignment given to the debtor,
3) The notice must be delivered to the debtor by recorded post.

Sections 136 and 196(4) of the Law of Property Act 1925

Evidence of all 3 would need to be given to the court so put the claimant to strict proof. Claimants dont like showing the assignment of the debt because it shows the amount they sold/bought it for.

There is another type of assignment, called equitable assignment which is used when the above are not complied with, but only the original owner of the debt can enforce it, with the new owner as an additional party.

It is for the court to decide if, how and when any document should be served, not
1st credit.
Now they have initiated (and it appears that may be on a dodge wicket if they cannot prove legal assignment) I personally would not contact 1st Credit, other than for genuine negotiations to settle the matter out of court.

If the court is awaiting a response from you, maybe advise them that

'the documentation provided does not provide proof of a legal assignment as there is no document of assignment, the document claimed to be a notice of assignment does not assign the correct amount of debt and there is no evidence to show the notice was delivered by recorded delivery, as required under the Law of Property Act 1925.

The claimant has not shown it has acquired any right of action and is unlikely to succeed in these proceedings.

The burden of proof lies with the claimant and I am at present, unable to admit, deny or defend any proceedings.'

Hope it helps

Stuart

[middenmess]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

Hi:

I am happy to share with you what I know.

Case stayed = Proceedings are halted
There are usually conditions attached like a time limit or pending specified actions or instructions.
What were the terms of the stay?

For an assignment to be valid there need to be 3 specific requirements fulfilled.
1) The assignment of the debt (a written document between the seller and buyer of the debt)
2) Notice of that assignment given to the debtor,
3) The notice must be delivered to the debtor by recorded post.

Sections 136 and 196(4) of the Law of Property Act 1925

Evidence of all 3 would need to be given to the court so put the claimant to strict proof. Claimants dont like showing the assignment of the debt because it shows the amount they sold/bought it for.

There is another type of assignment, called equitable assignment which is used when the above are not complied with, but only the original owner of the debt can enforce it, with the new owner as an additional party.

It is for the court to decide if, how and when any document should be served, not
1st credit.
Now they have initiated (and it appears that may be on a dodge wicket if they cannot prove legal assignment) I personally would not contact 1st Credit, other than for genuine negotiations to settle the matter out of court.

If the court is awaiting a response from you, maybe advise them that

'the documentation provided does not provide proof of a legal assignment as there is no document of assignment, the document claimed to be a notice of assignment does not assign the correct amount of debt and there is no evidence to show the notice was delivered by recorded delivery, as required under the Law of Property Act 1925.

The claimant has not shown it has acquired any right of action and is unlikely to succeed in these proceedings.

The burden of proof lies with the claimant and I am at present, unable to admit, deny or defend any proceedings.'

Hope it helps

Stuart

Your detailing of what is required with assignments is sound but on one case on here recently the Judge more or less bypassed those requirements and found for the DCA!

[red6two]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

Hi Middenmess and Judge mental,
Thanks for your help.
Just to clarify, the loan was taken out in 2006, it was apparently assigned to 1st credit in April 2009.
Do you think it is wise to ask the court to strike out the claim?

[Brian]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

One thing is very clear about judges... no two are the same.....:tinysmile_hmm_t2:
This matter has its own issues about it...

Bri

[nicknick]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

You may want to add this to your defence, it's something that I did for somebody else some time age. It explains the whole background to assignments:-

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

136. Legal assignments of things in action.
— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

196. 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.

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).


23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.


24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

[red6two]

Re: Help needed with LCS and 1st credit Claim - possible fraudulent documents

Hi Nicknick,
Thanks for that, I will definetly be including what you've written. Much appreciated.