''Assignment''

[DoubtingThomas]

Re: ''Assignment''

Thanks Labman
It has also been in dispute with B/C for over a year. About the same time as Middenmess went that way, as we were running in tandem at one point
DT

[charitynjw]

Re: ''Assignment''

Bit of twisted thinking here, re the Law of Property Act.

As stated above, the assignment must be "under the hand of the assignor".

My reading of that means that , via statute, it must be made in writing, & signed by the assignor or his agent. (The authority seems to be Grey v IRC [1960] HL 1, & possibly Vandervell v IRC [1966] 2 AC 291 (HL) ).

Now, we know the debtor has to be informed as per s196.

But would it be correct to say that, unless he/she had sight of the signed agreement between the assignor & assignee, he/she could not know for certain whether the purported assignee has good title?

[winner12]

Re: ''Assignment''

Well
All this is mighty interesting reading I have the same thing from Lowells same envelope for NOA as hello were Lowells pay us letter
I also thought it was all iffy stuff so if its not sent recorded its not valid then not that I ever thought it was and my account is in dispute also with the OC
I know Curly said on here not to believe a word Lowells say how true those words ring in my ears

[Bill-K]

Re: ''Assignment''

...would it be correct to say that, unless he/she had sight of the signed agreement between the assignor & assignee, he/she could not know for certain whether the purported assignee has good title?

Not twisted thinking to my mind, Chaz - the logic is the basis for my belief expressed earlier - I just wish I had put it as clearly and authoritatively as you have done, sir !!!

[middenmess]

Re: ''Assignment''

Originally Posted by charitynjw
''...would it be correct to say that, unless he/she had sight of the signed agreement between the assignor & assignee, he/she could not know for certain whether the purported assignee has good title?''


Catching sight of Father Christmas and his sleigh would probably be an easier thing to achieve.

[DoubtingThomas]

Re: ''Assignment''

Perhaps that's what they think they are going to catch sight of from us, Middenmess. 'Tis christmas bonus time a'coming

[labman]

Re: ''Assignment''

I can't help thinking the EU Directives are going to be a spanner in the works here.

Could it be that the Assignment can be as per the EU Directives rather than Section 136, but need to be served as per Section 196 LoPA?

[charitynjw]

Re: ''Assignment''

Originally Posted by charitynjw
''...would it be correct to say that, unless he/she had sight of the signed agreement between the assignor & assignee, he/she could not know for certain whether the purported assignee has good title?''


Catching sight of Father Christmas and his sleigh would probably be an easier thing to achieve.

Lol!

The point I was clumsily trying to make, though, is that unless you can be sure that the 'owner' of a property (& a debt is property aka a 'chose in action'), how do you not know that some other person can claim better title to that property.
If the 'assignee' is not willing to prove that they are legally the new owner, it would be unwise to deal with them.
(Would you buy a car from some bloke down the pub if you didn't have proof of ownership?)

[Sparkie1723]

Re: ''Assignment''

This has been extracted from Barristers website the Old Bailey peeps can have a read ...may be helpful .....I know it refers to mortgages and secured loans ....but assignment is assignment.

Sparkie


The Law of Property Act 1925 and effective service of Notices of Assignment

We are 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.

IMO The borrower would not be responsible for these extra expenses as it was the lenders fault.

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.

[middenmess]

Re: ''Assignment''

Hi charitynjw,

The older I get the more I'm inclined to nit pick when I am dealing with allegedly professional companies who fail,often miserably, with their written communications. [not even going to think about their abysmal telephone methods!]

I believe that we all have the right to be dealt with in a professionally competent and detailed manner with information of the business in hand being presented in a civil and easy to understand format so that all parties involved know exactly the true and legally correct status of the matter to be dealt with.

There should be no areas of ambiguity in that communication whatsoever-after all these communications could one day be replied upon in Court.

The clearer the presented information, and the more inclusive that is, then the clearer the options to deal with or resolve become.

In the past 30 months or so communications relating to my 'issues' from Banks,DCA's & ''Solicitors'' have ,with rare exceptions,failed on all of the above mentioned requisites but have achieved top marks from me for their ability to have been consistently presented in a difficult to understand format with large portions of waffling irrelevance compounded with misinformation and dubious grammar.

[labman]

Re: ''Assignment''

Lol!

The point I was clumsily trying to make, though, is that unless you can be sure that the 'owner' of a property (& a debt is property aka a 'chose in action'), how do you not know that some other person can claim better title to that property.
If the 'assignee' is not willing to prove that they are legally the new owner, it would be unwise to deal with them.
(Would you buy a car from some bloke down the pub if you didn't have proof of ownership?)

The best I can find on this is that initially you have to accept the NOA via letter. Validation of the assignment is a perfectly fair process, as Charity points out above. It would seem that copies of statements, a copy of the original agreement etc... by the assignee is enough to prove they possess the debt. However, if it were to go to court, or if you were to force the issue through the courts, the Deed of Assignment would have to be produced under the Rules of Disclosure CPR31. This would clearly involve costs and delay proceedings, but at the end of the day it is your right to see this Deed and a judge would order it to be disclosed if it went this far.

[labman]

Re: ''Assignment''

but have achieved top marks from me for their ability to have been consistently presented in a difficult to understand format with large portions of waffling irrelevance compounded with misinformation and dubious grammar.

Thus your quotation at the top of this page about things being communicated to you in a way that is clearly understandable.

[DoubtingThomas]

Re: ''Assignment''

Any movement/development, Middenmess?
DT

[DoubtingThomas]

Re: ''Assignment''

Well, surprise, surprise, have recently received two letters from Lowells. All mistakes repeated over and over, and they are answering my
"recent" communication of nearly a year ago. At a loss to know quite what to do/answer now!!
DT
Happy New Year everyone!