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Notice of Assignment

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  • Notice of Assignment

    Greetings all. I am attending the county court on behalf of my daughter in law who is being pursued by a car credit company for return of goods etc. I managed to get the previous case dismissed in September '10 due to the company not being able to satisfy the court that a notice of assignment was delivered to us. They provided a template of what the letter may look like and stated that individual copies were not kept due to the amount and admin costs! We returned to court yesterday with a duplicate case except they had made statement that they have since informed us in writing of the assignment and under the property act their is no time requirement or need to provide proof of the same. This statement got them out of having to appeal due to one DJ having ruled in September and (i forget the latin) yesterdays judge changing his decision. I have to prepare a defence in 14 days and am asking whether they are correct in their statement that they have no burden of proof etc. If this is the case why would the previous judge have asked for it? We seriously believe that our account was not assigned, no letters or communications for 3 years since alledged assignment, they are unable to provide a reasonable statement of account, just a screen dump. Also in the last year they have provided no less than 6 different settlement figures. Thank you in advance for any assistance.
    Tags: None

  • #2
    Re: Notice of Assignment

    Have you received a complaint default notice, does the agreement/document contain the prescribed terms. Some info on LOPA below.


    This may assist - I think you need to consult a conveyancing solicitor:The Law of Property Act 1925 and effective service of Notices of Assignment

    I am aware that a number of consumer action groups are advising consumers to apply for default judgments, obtained against them by lenders for failure to make repayments, to be set aside on the basis that notice of assignment of the mortgage has not been served correctly. This is relevant where, for example, a lender has purchased a mortgage loan book and so was not the original party to the mortgage contract. If argued successfully this would mean that the assignee lender had no right to bring an action in the first place.

    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.

    Conclusion

    If the mortgage conditions are silent as to how notice should be served, the provisions of the LPA 1925 will prevail. Express notice, in writing, must be given to the borrower and either delivery evidenced (by Affidavit of Service) or sent by registered letter, and not returned, in order to be validly served in accordance with section 196 LPA 1925. If this is not done, the borrower could argue that they did not receive the notice and that the assignee has no right to bring an action against the borrower in its sole name.

    If, however, the mortgage conditions provide that notice is to be given by other means, e.g. by normal post, then so long as the method prescribed in the mortgage conditions has been followed, the notice will have been validly served.

    A successful argument by a borrower that a notice of assignment has not been validly served does not give a total defence to that borrower and render the sums being claimed by the lender irrecoverable. The lender would, however, have to serve a notice of assignment on the borrower in using the correct method and then recommence litigation, thus incurring extra expense. Alternatively, the assignee will need to join the original lender into the action. Even if this is possible and the original lender consents, it will again incur extra expense

    Mortgage lenders should ensure that their mortgage conditions include a clause which varies the provisions of Section 196 LPA 1925 and that they follow the prescribed method of service to ensure that borrowers cannot use this to delay and increase the costs of recovery litigation

    Comment


    • #3
      Re: Notice of Assignment

      Thanks for the usefull info .. however please note that this involves a car not a house and is covered by the CCA 1974.

      Comment


      • #4
        Re: Notice of Assignment

        Originally posted by Rockie4 View Post
        Thanks for the usefull info .. however please note that this involves a car not a house and is covered by the CCA 1974.
        Same applies.

        What year did you enter into the agreement and do you hold a copy?

        Comment


        • #5
          Re: Notice of Assignment

          The agreement was entered into in 2004. They are now relying on advising us on the 25th October 2010 that assignment took place in 2007. They state that this is satisfactory as the acts you quote do not schedule any time limits for serving.

          They are basically saying they do not have to prove serving in 2007 as the assignment can be served at any time. I feel that regardless of the statute 3 years is unreasonable, and feel they are hiding behind this as they have openly said they cannot prove serviture back in 2007, they did not keep copies!!

          I need to establish a defence against this, even if only to establish doubt in the DJ's mind and force the situation.

          Comment


          • #6
            Re: Notice of Assignment

            I have succesfully staved off a number of DCAs by asking for proof that the debt was legally assigned.

            Some of them such as Crapbot and Crapquest are stupid enough to mock up notices of assignment themselves and enclosing it with their initial hello letter. They claim this of course comes from the original assignor but this lie is easily dealt with by requesting proof from the OC.

            The DCAs attempts to concoct an notice of assignment are so ameteurish that a child of five could cut and paste better

            Comment


            • #7
              Re: Notice of Assignment

              Hi Rockie

              I believe that they are correct. An assignment is only equitable until a Notice of Assignment is received. At which point - assuming the details of the assignment are correct - it becomes absolute. As far as I am aware,there is no time limit as to when that NoA can be sent. I stand to be corrected.

              However, ask for a copy of the Deed of Assignment, because dates of assignment and amounts that were assigned have to be correct. Also check the conditions of the assignment to ensure that it is an absolute assignment.

              Alan

              Comment


              • #8
                Re: Notice of Assignment

                Originally posted by Algee View Post
                Hi Rockie

                I believe that they are correct. An assignment is only equitable until a Notice of Assignment is received. At which point - assuming the details of the assignment are correct - it becomes absolute. As far as I am aware,there is no time limit as to when that NoA can be sent. I stand to be corrected.

                However, ask for a copy of the Deed of Assignment, because dates of assignment and amounts that were assigned have to be correct. Also check the conditions of the assignment to ensure that it is an absolute assignment.

                Alan
                Good & useful Post. Thx.

                Comment


                • #9
                  Re: Notice of Assignment

                  Unless it goes to court there is little chance of you getting the actual deed of assignment. This is a confidential agreemnet between the Creditor and the DCA and contains sensitive financial information regarding all the debts they purchased

                  Comment


                  • #10
                    Re: Notice of Assignment

                    Thanks everyone .. lets get to the nitty gritty!! The template letter they relied on in the first case which was dismissed stated 2nd July 2007 was the effective date of assignment. In this case which is current the date of notice was given to us on 25th October 2010 states the date of assignment is 19th June 2007? Ok so far??
                    The act para 136 says- 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. Should I decide to accept assignment has been noticed is the effective notice date the 25th October 2010 (being the date of the notice they now rely on)? If so are they entitled to request interest on the alledged debt before this date or charges to that matter, also should I bring up the difference in assignment dates?
                    Or does it make not a happenth of difference?

                    Comment


                    • #11
                      Re: Notice of Assignment

                      ODC

                      Rockie states in 1st post that he is attending court.

                      Rockie

                      The effective date of the notice being shown to be absolute is the date on which you received the NoA. Up until that time - regardless of when it was assigned - the assignment is only equitable. That means that once you have received the NoA, the current creditor can issue a claim in his name only. Prior to you receiving the NoA, he can only make a claim together with the original creditor.

                      This was the reason that the first claim was dismissed - the claimant could not prove that you had received the NoA, therefore he could not make a claim in his name only.

                      As I have said in my previous post, get a copy of the Deed of Assignment, and check that everything is correct.

                      Have you sent CPR14 and 18 requests to the claimant? Have they given you all the documents to enable you to compile a defence?

                      As far as interest/charges are concerned, you need to know if the agreement was still live when it was sold, if the Terms & Conditions allow for interest/charges to continue to be added.

                      Did your daughter-in-law ever receive a Default Notice prior to the claim being made? Have you ever made a request for a copy of the Agreement? If so, is it OK, or was there any PPI involved?

                      Alan
                      Last edited by Algee; 17th January 2011, 15:42:PM.

                      Comment


                      • #12
                        Re: Notice of Assignment

                        Rockie

                        Have a look at this Case Law Update - Rosling King August 2009: Lender Update.

                        It is really concerning mortgages, but it is also relevant to other credit accounts.

                        Alan

                        Comment


                        • #13
                          Re: Notice of Assignment

                          I've received the obligatory 'goodbye' / 'hello' letters for an account that has been (allegedly) assigned.

                          At what stage am I entitled to ask for a copy of the actual Deed of Assignment (if ever) and what should it look like?

                          I did read somewhere they needed to be signed or witnessed by a registered solictor.
                          They were out to get me!! But now it's too late!!

                          Comment


                          • #14
                            Re: Notice of Assignment

                            Alan,

                            Thank you for your comments etc. Perhaps I should clarify the action is being taken by a solicitor on behalf of the car credit company, it has not been sold to a DCA. They, as i have said, are relying on a NOA being given to us in Oct '10, sent in a standard letter, not recorded or registered. From your info I assume that this has not been served in the prescribed manner and could defend that the matter is still equitable and they are not able to enforce in their own right? However, as we responded to that letter, we have acknowledged reciept, do you think a judge would see it that way? Also as the assignment took place in 2007 are the notices for default etc sent between then and oct '10 legal as they should have come from both parties of the assignment? I hope you see where I am coming from? As this is a LARGE company with many vehicles on HP and we are showing that NOA's were not sent to any customer in the prescribed manner do we have a duty to other poor soles who are in similar actions or have suffered, so it seems, without the right to do so??? Or am I going too deep???!!

                            Comment


                            • #15
                              Re: Notice of Assignment

                              If the solicitor is acting on behalf of the OC i.e. the Car Credit company they I do not think the debt would need to have been assigned

                              Comment

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