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Re: Horsemad v Debenhams Storecard court papers - help!
Ok this is my Draft Defence, can you have a look and let me know if it's suitable or needs some alteration. Court shuts at 4pm so here go's :
CL Finance - Claimant
and
- Defendant
Defence
1. I XXXXXXXXX of XXXXXXXXXX am the Defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.
2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.
3. The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.
4. I will now look at the important issues relating to this case which must be brought to the courts attention.
Pre-action protocols
5. The Claimant CL Finance Limited has failed to follow the pre-action protocols in sofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.
The Assignment of the debt
6. I believe the Assignment of the Debt does not comply with Law of Property Act S136, as the original Assignment should have come from Santander Cards on their Headed Paper and been sent by recorded Mail to myself, Mrs Julie Haythorn, the same should have been
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—
(a)the legal right to such debt or thing in action;
(b)all legal and other remedies for the same; and
(c)the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—
(a)that the assignment is disputed by the assignor or any person claiming under him; or
(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.
Also notification should of been sent to the debtor informing them of the assignment as per s196
196 Regulations respecting notices
(1)Any notice required or authorised to be served or given by this Act shall be in writing.
(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.
(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
(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.
(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.
(6)This section does not apply to notices served in proceedings in the court.
7. I require the Claimant produce proof of posting per s196 LoP Act 1925. As I have never received the Deed of Assignment before now.
8. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly,as also noted that the Notice of Assignment should have been from the Original Creditor (Santander Cards) to the Defenedant Mrs Julie Haythorn.
9. I request that the court strike out the Claimants’ case as the Claimant has blatantly abused Pre Action Protocol and has no right to bring this action against me in their name as the debt has not been properly or legally Assigned before this action was brought about.
Ok this is my Draft Defence, can you have a look and let me know if it's suitable or needs some alteration. Court shuts at 4pm so here go's :
CL Finance - Claimant
and
- Defendant
Defence
1. I XXXXXXXXX of XXXXXXXXXX am the Defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.
2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.
3. The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.
4. I will now look at the important issues relating to this case which must be brought to the courts attention.
Pre-action protocols
5. The Claimant CL Finance Limited has failed to follow the pre-action protocols in sofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.
The Assignment of the debt
6. I believe the Assignment of the Debt does not comply with Law of Property Act S136, as the original Assignment should have come from Santander Cards on their Headed Paper and been sent by recorded Mail to myself, Mrs Julie Haythorn, the same should have been
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—
(a)the legal right to such debt or thing in action;
(b)all legal and other remedies for the same; and
(c)the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—
(a)that the assignment is disputed by the assignor or any person claiming under him; or
(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.
Also notification should of been sent to the debtor informing them of the assignment as per s196
196 Regulations respecting notices
(1)Any notice required or authorised to be served or given by this Act shall be in writing.
(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.
(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
(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.
(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.
(6)This section does not apply to notices served in proceedings in the court.
7. I require the Claimant produce proof of posting per s196 LoP Act 1925. As I have never received the Deed of Assignment before now.
8. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly,as also noted that the Notice of Assignment should have been from the Original Creditor (Santander Cards) to the Defenedant Mrs Julie Haythorn.
9. I request that the court strike out the Claimants’ case as the Claimant has blatantly abused Pre Action Protocol and has no right to bring this action against me in their name as the debt has not been properly or legally Assigned before this action was brought about.
of course the sooner we can get this entered the better but at least we know we have a bit more time to work on getting it spot on.
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